Homs Company Ltd v Ssempereza and Another (miscellaneous Application no. 322 of 2024) [2024] UGHC 1214 (25 September 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION**

## **MISCELLANEOUS APPLICATION NO. 322 OF 2024**

## (ARISING FROM HCCS NO. 857 OF 2022)

# HOMS COMPANY LTD :::::::::::::::::::::::::::::::::::

#### **VERSES**

#### 1. SSEMPEREZA RAJAB

- 2. SENTONGO ISMAIL KITOOKE ::::::::::::::::::::::::::::::::::: - 3. LUYIMBAZI HASSAN (Jointly as administrators of the estate of the late Yoanna Maria Kiggundu)

#### **RULING**

## BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K

The Applicant moved court by notice of motion under Order 6 Rule 28, 29 and 30, Order 7 rules 1 and 11 and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules; Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Section 59 and 176 (c) of the Registration of Titles Act for the following orders: -

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a. That the Respondents' suit and claims against the Applicant in HCCS No. 857 of 2022 Ssempereza Rajab & Others Vs the Administrator of the Estate of the Late Saulo Bamuchumika & Ors for recovery of the suit property comprised in Kyadondo Block 268 Plots 978, 979 and 980 all situated at Naziba and the remedies sought therein are not maintainable in law against the Applicant, rendering the pleadings liable to be struck out and the entire suit be dismissed for being incompetent.

b. That the pleadings in HCCS No. 857 of 2022 Ssempereza Rajab & Others Vs the Administrator of the Estate of the Late Saulo Bamuchumika & Ors for recovery of the suit property comprised in Kyadondo Block 268 Plots 978, 979 and 980 all situated at Naziba be struck out in respect of the Applicant and the suit be dismissed with costs to the Applicant.

c. That the Applicant be awarded costs of the suit and costs of the Application.

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The grounds of this application are contained in the notice of motion and the affidavit in support deposed to by Mohamed Santur Ghedi (one of the Applicant's Directors). Briefly are. That the Applicant filed its defence in HCCS No. 857 of 2022 while contesting the competence of the suit. That the reliefs sought by the Respondents are not justified by the pleadings thereby rendering the plaintiffs' action frivolous and vexatious. That the suit is misconceived and barred by the law of limitation and that the same does not disclose a reasonable cause of action against the Applicant. That the suit is res-judicata and also instituted against a non- existing person (the 1<sup>st</sup> Defendant). That it is in the interest of justice that the Application and the orders sought are granted.

35 The Application was opposed by Sempereza Rajab (*the* $\mathcal{F}^t$ *Respondent herein*). He averred that the Applicant's plea of res-judicata is misconceived since Misc. Cause No. 96 of 2022 was an application for judicial review. That the objection pertaining limitation is also misconceived and untenable because it was after the grant of letters of administration to the estate of the late Yoanna Maria Kiggundu on 20/01/2022 when they elected to investigate the transactions at the land office 40 in respect of the suit property. That they discovered the fraud pertaining the deregistration of the late Yoanna Maria Kiggundu in 2019, hence the suit is not barred by limitation. That at the time of filing the suit, the respondents' title was still intact and had not been cancelled by the Commissioner Land Registration. That fraudulent schemes, forgeries and illegalities perpetrated by the Applicant and other defendants 45 require a full investigation under HCCS No. 875/2022. He prayed that the application be dismissed with costs to the Respondents.

Mr. Kenneth Kiwuuwa the area LC Chairperson of Naziba Cell 1 since 2004 swore a supplementary affidavit in reply. He deposed that the land comprised in Kyadondo Block 268 Plots 978, 979 and 980 situate in his village was formerly comprised in Kyadondo Block 268 Plot 14 which was owned by the family of the Late Yoanna Maria Kiggundu where they grew crops and had a burial ground. That this was demolished in 2012 by Juliet Kawugule Kafiire.

In rejoinder, Mr. Muhamed Santur Ghedi averred that the plea of res-judicata is valid since the Respondents' suit is a disguised appeal from the out-come of the High Court Misc. Cause No. 96 of 2022 delivered on 30/09/2022. That the Respondents father passed on in 1990 but they took 31 years to apply for letters of administration

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and that at the time of the application, close to 53 years had passed from the time 60 the title was first transferred from their grandfather. That the Respondents' grandfather was still alive when his title was first transferred in 1968 and the subsequent transfer in 1969 into the names of Juliet Kawugule Kafiire. That the Applicant has never been a party to any fraud or forgeries relating to the transfer of the suit land. 65

Further, that the Respondents could have filed the suit based on the newly created plots and could have brought the suit as beneficiaries at the time of the alleged eviction in 2012. That the Respondents' have not attached any documentary proof to show that they were indeed evicted in 2012, neither did they file a police complaint but rather waited until 2022 to file this suit. That the claims of the Respondents are an afterthought meant to deprive the Applicant of its lawfully acquired land. Lastly, that the Respondents have not disputed the fact that the suit against the Administrator of the estate of the late Saulo Bamuchumika is against a non-existing person.

Legal representation: The Applicant was represented by Counsel Nasser Sserunjogi & Counsel Bena Nakyeyune while Counsel Mac-Dusman Kabega represented the Respondents. All Counsel filed written submissions which I have considered.

I will resolve the issues raised by Counsel for the Applicant in the following order:

- i. Whether HCCS No. 857 of 2022 is a res-judicata? - ii. Whether HCCS No. 857 of 2022 is time barred? - iii. Whether HCCS No. 857 of 2022 discloses no reasonable cause of action against the Applicant? - iv. Whether HCCS No. 857 of 2022 is frivolous, vexatious and an abuse of court process?

v. Whether the 1<sup>st</sup> Defendant in HCCS No. 857 of 2022 is non existing?

## Issue No.1: Whether HCCS No. 857 of 2022 is a res-judicata?

Counsel for the Applicant relied on Section 7 of the Civil Procedure Act and the Supreme Court Case of Dison Okum & Ors Vs Uganda Electricity Transmission Co. Ltd & Ors CA No. 18 of 2020 and submitted that the rationale of the doctrine of res-judicata is to bring finality to litigation and protect parties from

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defending suits that have already been determined by a competent court. He added that, the court addressed the issue of proprietorship in Misc. Cause No. 96 of 2022 in which the Applicant sought orders stopping cancellation of its title against the Commissioner for Land Registration and the Administrators of the Estate of the late Yoanna Maria Kiggundu. That orders in land matters in the Torrens system should be considered in rem. That the orders of Justice Ssekaana in Misc. Cause No. 96 of 2022 placed the proprietorship of the suit land in the hands of the Applicant.

In reply, Counsel for the Respondents submitted that the burden to prove the pre-105 requisites of the defence of res-judicata rests with the Defendant/Applicant. He relied on the case of Onzia Elizabeth Vs Shaban Fadul HCCA No. 9 of 2013 and Godfrey Magezi Vs National Medical Stores & 2 Ors HCCS No. 636 of 2016 for his contention that Misc. Cause No. 96 of 2022 was concerned with the decision making process which led to the cancellation of the Applicant's title by way 110 of amendment order dated 6/02/2020. That the legality of purchase, transfer and registration on the suit land was not among the issues for determination before the court. That matters pertaining fraud committed by the Applicant and the other defendants were not raised and could not be determined by court in the previous application. Further, that some of the fraudulent activities were committed after the 115 ruling had been delivered. He added that the entire decision in Misc. Cause No. 96 of 2022 was appealed to the Court of Appeal vide Civil. Appeal No. 434 of 2022 and that the record and memorandum of appeal were served on the Applicant's lawyers on $5/12/2022$ . 120

In my evaluation of the above contention, Section 7 of the Civil Procedure Act bars a court from entertaining a matter which was heard and disposed of by a court of competent jurisdiction. Relying on the section 7 and principle of res-judicata, the Supreme Court in Karia and Another vs. Attorney General and Others [2005] 1 EA 83, cited with approval by my learned brother Mubiru J in the case of Onzia $v$ Shaban Fadul (supra), held that (a) there has to be a former suit or issue decided by a competent court (b) the matter in dispute in the former suit between the parties must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar and (c) the parties in the former suit should be the same parties or parties under whom they or any of them claim, litigating under the same title.

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Applying the above tests to the instant case, the Applicant relies on Misc. Cause No. 96 of 2022 to plead existence of a former suit adjudicated between parties. This Application was instituted by Homs Company Ltd & Dhiglool Limited Vs The Commissioner Land Registration and the Administrators of the Estate of the Late Yoanna Maria Kiggundu, a ruling dated 30/09/2022 is on record.

In the case Lt. David Kabareebe versus Maj Prossy Nalweyiso; CACA No. 034 of 2003 cited with approval from the case of Triad Holdings Ltd Vs Network

Exports PVT Ltd & 2 Ors, HCCS No. 358 of 2000, it was held that; "to give effect 140 to a plea of res judicata, the matter directly and substantially in issue in the suit must have been heard and finally decided in the former suit. It simply means nothing more than that the person shall not be heard to say the same thing twice over in successive litigations". 145

In this case, it is evident that Misc. Cause No.96 of 2022 was for judicial review of the orders issued by the Commissioner for Land Registration while the substance in HCCS No. 857 of 2022 is for determining the rights of the parties pertaining the suit land and the fraudulent activities allegedly committed by the Defendants. The issues of fraud and ownership of the suit land have never been determined by any court of competent jurisdiction. Therefore, HCCS No. 857 of 2022 cannot be said to be res-judicata. Therefore, I resolve the first issue in the negative.

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#### Issue 2. Whether HCCS No. 857 of 2022 is time barred.

Counsel for the Applicant relied on Order 7 rule 6 of the Civil Procedure Rules to submit that where a plaint is filed after expiration of the statutory period of limitation, grounds upon which exemption is claimed must be specifically pleaded. That the Respondents did not plead any grounds of exemption from limitation in the amended plaint. He relied on Section 5 of the Limitation Act to argue that the limitation period for an action for recovery of land registered under the Registration of Titles Act on account of fraud is 12 years from the date of discovery of the alleged fraud. That the Plaintiffs' suit is time barred given the fact that no action was taken by their late father (Yoanna Maria Kiggundu) in 1968 or 1969 when the late Saulo Bamuchumika and Juliet Kawugule Kafiire were registered. That the late Yoanna Maria Kiggundu died in 1990 but the plaintiffs did not equally take action until 2022 when the instant suit was filed.


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Counsel further relied on Section 6 of the Limitations Act, Section 20 of the 170 Limitation Act Cap 80 and the case of Kalyesubula Isaac & Ors Vs Commissioner Land Registration Civil Suit No. 2245 of 2015 where it was held that, 'like the hands of time, statutes of limitation tick steadily, reminding litigants that justice delayed risks fading into the mists of memory and passage of time can render even the most meritorious claims elusive'. He added that this court has no jurisdiction 175

to hear a stale claim and that the plaint ought to be struck out under the provisions of Order 7 rule 11 (d) CPR.

In reply, Counsel for the Respondents relied on the case of Nyombayabo William Vs Bundibugyo District Local Government HCCS No. 008 of 2020 and 180 Ababiri Muhamood & Ors Vs Mukomba Ananstasia t/a Taita Wilfred HCCS No. 22 of 2015 and argued that the respondents were in uninterrupted possession of the suit property until in 2012 when they were unlawfully evicted by Juliet Kawugule/the 2<sup>nd</sup> Defendant in HCCS No. 857 of 2022. That the Applicant illegally acquired the suit property in 2018 and cannot attest to the possession of the suit 185 property prior to its purchase. That the Applicant was incorporated in 2016 and cannot be in personal knowledge of events that occurred in 1968 before its legal existence. That the fraudulent registration of Saulo Bamuchumika and Juliet Kawugule was concealed from 1968 up to Kiggundu 2012 when the family of the late Yoanna Maria Kiggundu was unlawfully evicted from the suit property by Juliet 190 Kawugule Kafiire.

Counsel further relied on Section 25 of the Limitation Act and contended that the Applicant and her predecessors in title having concealed their fraudulent registration cannot hide under the limitation period. That the Respondents only discovered the fraud of Saulo Bamuchumika and Juliet Kawugule on 22/10/2019. Finally, that the Applicant is a non-Ugandan and therefore, it is illegal and

unconstitutional to own the suit property under mailo tenure.

In rejoinder, it was argued that the Applicant has never been in any position to 200 conceal any information in respect of the suit land owing to the fact that information regarding any registrable interest in Uganda is a preserve of the office of the Commissioner Land Registration.

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25/09/2024 In resolving the above issue, Section 5 of the Limitations Act provides that 205 actions for recovery of land must be instituted within 12 years from the date on which the right of action accrued.

In resolving the above issue, in this case, I agree with the Applicant's averment that the cause of action arose at that time when the suit land was first transferred to the 1<sup>st</sup> and 2<sup>nd</sup> Defendants, that is; between 1968 and 1969. This is more than 12 years from the time the cause of action accrued.

However, Section 25 of the Limitation Act provides for postponement of limitation period in case of fraud until after the discovery of the fraud. In this case, the amended plaint raised an exception under paragraphs 8(k), where it is pleaded that the plaintiffs discovered the fraudulent acts or illegalities surrounding the registration of the Defendants on 22<sup>nd</sup> October, 2019 after obtaining the handwriting expert's report. In Misc. App. No. 192 OF 2002 (Arising out of Civil Suit No. 196 of 2002) Tatu Nanteza Vs Administrator General & Anor, His Lordship Egonda Ntende similarly stated that for Section 25 of the Limitation Act "to be relied upon, fraud in my view would have to be pleaded, and particularized,

- setting out in the plaint the date upon which the fraud was discovered or ought to have been reasonably discovered. This would then show the exemption, in case of fraud, to the period of limitation or the postponement of the period of limitation". - In view of the above, I find that the limitation period, as per the amended plaint, 225 started to run from October 2019 when the alleged fraud was discovered by the Respondents. At the time of filing the head suit on 4<sup>th</sup> October, 2022, 3 (three) years had lapsed. Consequently, I find that the suit is not time barred. Therefore, the second issue is resolved in the negative. 230

## Issue 3. Whether HCCS No. 857 of 2022 discloses no reasonable cause of action against the Applicant.

It was counsel for the Applicant's argument that courts are empowered to strike out a pleading which discloses no reasonable cause of action and that only a plaint must 235 be looked at. He relied on Order 6 rule 30 of the CPR and the case of Attorney General Vs Tinyefuza (Constitutional Appeal No. 1 of 1997) for his contention that a reasonable cause of action is that which in light of the pleadings has some chance of success. That the action for recovery of land cannot be maintained by the Respondents where the alleged fraud was committed in 1968, and that the same 240 cannot be attributed to the Applicant who acquired the suit land in 2018. That the

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Respondents cannot maintain an action for recovery of land from a third party who dealt with the then registered proprietor who was registered for over a period of 54 years. That no credible evidence has been brought in the Respondents' pleadings to prove that the Applicant participated in the alleged fraud. That the allegation of fraud must be specifically pleaded and attributed to the transferee either directly or by necessary implication which is not the case here. That at the time of the death of Yoanna Maria Kiggundu, the suit land did not form part of his estate.

In reply, Counsel for the Respondents argued the third and fourth issues together. 250 He relied on the case of Kapeke Coffee Works Ltd Vs NPART CACA No. 3 of 2000 and submitted that in order to prove a cause of action, the plaint must show that the plaintiff enjoyed a right, that the right has been violated, and the defendant is liable. That the Respondents are the appointed administrators of the estate of the late Yoanna Maria Kiggundu; that they have a right to commence CS No. 857/2022 255 against the applicants and all the defendants therein for recovery of the land they claim was fraudulently and illegally grabbed from the estate. That the Respondents in CS No. 857/2022 seek to challenge the legality and propriety of the impugned respective sales, transfers, registrations and sub-divisions of the suit property amongst the Defendants. That the Applicant is sued in its respective capacity for the 260 alleged fraud and illegalities it committed in the purchase, transfer and registration of the suit land together with its predecessors in title.

In consideration of the above averments, the principles upon which court can rely on to reject a suit for failure to disclose a cause of action have been ably submitted 265 on by both Counsel. The Court of Appeal in Kapeke Coffee Works Ltd Vs Npart (supra) 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 O.7 r 1 (e) of the Civil Procedure Rules, it is a mandatory requirement for a 270 plaint to contain particulars constituting the cause of action and when it arose. In Tororo Cement Co Ltd V Frokina International Ltd Civil Appeal No. 2/2001 it was held that "in order to prove that there is a cause of action, the plaint must show that the plaintiff enjoyed a right; that the right has been violated; and that the defendant is liable". Where the three elements are present, a cause of action is said to have 275 been disclosed by a plaint.

Upon perusal of the amended plaint, the cause of action is stated under paragraph 8 and it is premised on facts that the Respondents claim ownership of land

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- comprised in Kyadondo Block 268 Plot 932, 977,978,979 and 980 (formerly Block 280 268 Plot 14) at Nazibba as part of the Estate of the Late Yoanna Maria Kiggundu; and that they were lawfully registered as Administrators of the Estate property comprised in Kyadondo Block 268 Plot 14 at Nazibba. In view of this, I find that the plaint discloses that the Plaintiffs enjoyed a right over the suit property. 285 - It is alleged that upon conversion of the suit property, the Commissioner Land Registration registered the same in the names of the late Saulo Bamuchumika instead of the late Yoanna Maria Kiggundu as the last registered proprietor (See. Paragraph 8 (d), (e) and (f). That Bamuchumika Saulo never owned the suit property and could not sell or transfer it to the 2<sup>nd</sup> Defendant. That it was the defective title that the 290 Applicant purchased from the 2<sup>nd</sup> Defendant and that the Applicant neither conducted due diligence prior to the impugned purchase of the suit land nor has it ever conducted any survey but rather relied on fraudulent desk surveys to sub-divide the land. According to these statements, I do find also that the plaint discloses that the Plaintiffs' alleged right was violated by the Defendants. 295

Further still, annexure A1 is a certificate of title for Block 268 Plot 14 registered in the names of the Respondents vide WKY 00298800 on 18/02/2022 and Annexure A2 is letters of administration for the estate of the late Yoana Maria Kiggundu vide AC No. 908 of 2021. The letters of administration entitle the Respondents to all 300 rights belonging to the estate of the late Yoanna Maria Kiggundu including the right to protect his estate. (See. Section 192 of the Succession Act). Annexure B2 indicates that the land was transferred to Saulo Bamuchumika on 30/11/1968 vide instrument No. 52123 and later to Juliet Kawugule Kafiire on 9/08/1969 vide instrument No. 54611.

The fact that the suit plots to wit; - 980, 979, 978, 932, which are registered in the names of the Defendants including the Applicant herein originated from Block 268 Plot 14 has not been disputed by the Applicants. The plaintiffs ably pleaded that they discovered the fraud and the illegalities on 22/10/2019 with the help of the handwriting expert's report (See. Paragraph 8 (k) and Annexure C attached to the Amended Plaint). Therefore, what the court has to determine is whether the Late Yoana Maria Kiggundu legally transferred the suit land to the 1st Defendant; and whether the 1<sup>st</sup> Defendant held a valid title which he could transfer to the 2<sup>nd</sup> Defendant and later to the 3<sup>rd</sup> Defendant/Applicant. To resolve these issues, it would be necessary for the court to hear and evaluate evidence from both parties.

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The argument that the Applicant did not participate in the fraud committed 54 years ago are issues of evidence which cannot be determined in this application. In the premises, I find that the Respondents/Plaintiffs' plaint discloses a cause of action against the Defendants.

Therefore, the third issue is resolved in the negative.

<u>Issue 4. Whether the suit is frivolous and vexatious.</u>

- In the case of Namakula vs. Matsiko (Miscellaneous Application No 580 of 325 2021, my learned sister Nakachwa J., cited with approval the case of R Vs Ajit Singh s/o Vir Singh [1957] EA 822 where the term "frivolous" was defined to mean, the absence of seriousness or the lack of validity or legitimacy. - Having found that the plaint discloses a cause of action, it follows that HCCS No. 330 857/2023 has an arguable legal basis and is therefore not frivolous and vexatious. Like the third issue, the fourth issue is resolved in the negative. Issue 5. Whether the 1<sup>st</sup> Defendant in HCCS No. 857 of 2022 is non existing.

Counsel for the Applicant relied on the case of Muwanguzi Moses Vs Uganda 335 Wood Ball Federation & Anor (Misc. Cause No. 33 of 2021) and argued that the status 'Administrators of the estate of the late Yoanna Maria Kiggundu' does not exist in law but rather particular and specific individuals being sued in the capacity of administrators of a particular estate. That such person is appointed by court, made known as such and it is those persons that can sue or be sued in that capacity. 340 In reply, it was submitted for the Respondents that the names of the administrators of the estate of the late Yoanna Maria Kiggundu have been spelt out in all pleadings, that the administrators have on numerous occasions attended court in person. He referred this court to **annexure A2** (Letters of Administration to the estate of the late Yoanna Maria Kiggundu). 345

Counsel for the Applicant did not rejoin to these averments; and I am unable to conceive his objection as regards the status of the administrators of the estate of the late Yoanna Maria Kiggundu, which is under the Administration of the Respondents.


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However, according to the Applicant's pleadings, the suit against the Administrator of the Estate of the late Saulo Bamuchumika was brought against a non-existing party. However, whether the said estate is administered by any person by virtue of holding letters of administration is a matter that cannot be determined at this point. The matter will be determined at trial upon adducing evidence. The last issue fails as well.

In conclusion, the application entirely fails and is dismissed with costs to the Respondents.

Respondents.<br>Signed, dated and delivered at KAMPALA this. 25 day of Septembor 2024.

Nabakooza Hayia. K Judg