Kacungumbe v Aneker & Another (Miscellaneous Application 37 of 2024) [2024] UGHC 808 (29 August 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA MISCELLANEOUS APPLICATION NO. 37/2024 (ARISING FROM HIGH COURT CIVIL SUIT NO. 0029 OF 2022)

$\mathsf{S}$

# KACUNGUMBE CEASER::::::::::::::::::::::::::::::::::: VERSUS

1. ANEKER MARY

2. AFOYOCHAN ISABELA

15 (Suing as beneficiaries of the late OCULMUNGU JOHN)::::::::::::::::::::::::::::::::::::

# BEFORE HON. JUSTICE COLLINS ACELLAM

## **RULING**

## **Brief Introduction**

This is an application brought by way of Notice of Motion under Section 6(2), 16, 20 of the Limitation Act Cap 80, Section 98 of the Civil Procedure Act Cap 71 as amended

and Orders 52 rule 1 & 2, 6 rule 28& 31 of the Civil Procedure Rules SI 71-1 for orders 25 that;

1. Civil suit No. 0029 of 2022 be dismissed for being time barred by Section 6(2), 16, 20 of the Limitation Act Cap 80. 2. The costs of this application be provided for.

#### Background

It is contended that on 24<sup>th</sup> October 2022 the Respondents filed Civil Suit No. 0029 of 2022 against the Applicant for; a declaration that the Plaintiffs as beneficiaries of the estate of the late Oculmungu John, have an interest in a piece of land situated at Nyaravur Trading Centre "B" Cell, Mbaro East Ward, Nyaravur Town Council in Nebbi district measuring approximately 0.1020 hectares and comprised in FHR Vol. HQT 322 Folio

12 Padyere 3 Plot No. 28 Land at Nyaravur Trading Centre herein after referred to as the suit land; a declaration that the Defendant's acquisition of a freehold certificate of title over the suit land the same being part of the estate of the late Oculmungu John was

- and/or is fraudulent, unlawful and illegal; a declaration that the defendant intermeddled 40 into the estate of the late Oculmungu John; an order for cancellation of the fraudulent sales agreement on the suit land in illegal possession of the Defendant; an order for cancellation of the freehold certificate issued to the Defendant; an order for payment of general damages for the inconvenience occasioned as a result of the illegal actions and/or - omissions unto the suit land; an order for payment of interest at a rate of 15% per annum 45


on the above from the time of the illegal acquisition of a certificate of title over the suit $\mathsf{S}$ land, until payment in full; and an order for costs of this suit.

The Respondents formally applied in HCMA No. 0034 of 2023 for amendment of pleadings and Court allowed their amended plaint on record on 6<sup>th</sup> of July 2023, from which the above prayers arise. The Defendant (Applicant herein) filed his Written 10 Statement of Defence on the 8<sup>th</sup> December 2022 stating that, the late Oculmungu John in his lifetime never owned the suit land and the Defendant only came to own it after purchasing it using his own personal money from the family of the late Okwong Japamora and subsequently processed a certificate of title for it in his own names FHR Vol. HQT 322 Folio 12 Plot No. 28 Land at Nyaravur Trading Centre.

Court gave the parties timelines within which to file the Joint Scheduling Memorandum, and Witness Statements, and these were complied with. Before setting down the suit for hearing, the Defendant (Applicant) now brings this application seeking the above orders.

# Grounds of the Application

The grounds on which this application is based on, are stated in the affidavit of the Applicant. The affidavit of the Applicant deponed on 24<sup>th</sup> June 2024 states that; the Respondents stated that as beneficiaries of the estate of the late Oculmungu John they

filed Civil suit No. 0029 of 2022 before this Honourable Court, the suit has been filed 25 after over 45 years from the time when the right of action arose since the late Oculmungu John died in 1977. The Respondents acknowledge both their capacity to sue as beneficiaries of the late Oculmungu John and the fact that he died in 1977 as clearly stated in paragraphs of their Plaint and Summary of evidence. The suit is barred in law

- by Sections 6 (2), 16 and 20 of the Limitation Act Cap. 80 because it was brought after 30 45 years from the time the right of action arose which is 1977 when late Oculmungu John died. That the 12-year rule for actions for any share or interest in estate of a deceased is inflexible and the Plaintiffs (Respondents) herein do not fall under any exceptions to the same. Limitation caught up with the Plaintiffs (Respondents) in 1989 and they 35 - cannot sustain an action in 2022.

## Grounds in opposition

In opposition, Ms. Aneker Mary, the 1<sup>st</sup> Respondent, in her affidavit deponed on 9<sup>th</sup> July 2024, she contends that the suit land has a family commercial building constructed jointly by the Respondents and Rev. Fr. Charles Ochul in 2004 which makes them to be in joint possession of the suit land. Fraud as a cause of action starts to run from the date it is detected and in this case it was 2021 when they learnt that the Applicant had obtained a certificate of title in a clandestine way without the knowledge and consent of the Respondents and the other beneficiaries. An amended plaint was filed on 6<sup>th</sup> July

2023 which sought to particularize fraud better in the pleadings and this is what should 45 be referred to not the old plaint.

The Court record does not reflect any Rejoinder pleadings filed so we shall proceed to $\mathsf{S}$ consider what is in dispute.

#### **Representation**

During the hearing, the Applicant was represented by *M/S Waymo Advocates* whereas 10 the Respondent was represented by *M/S Alaka & Co. Advocates*.

Before I proceed to the merits of the application, I want to note that I have perused through the application and all the supporting documents or affidavit and affidavit in reply, Both Counsel for the Applicant and Respondent filed their submissions which

- I have duly put into consideration to come up with this Ruling. There were no 15 rejoinders made on record. I shall now proceed to enlist the issue in contention, while dealing with a preliminary point of law raised by the Respondents in their submissions first. - Order 19 rule 3(1) states that; Affidavits shall be confined to such facts as the deponent 20 is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her own belief may be admitted, provided the grounds thereof as stated. - An interlocutory application can be described as an application to the court in any suit, 25 appeal or proceeding already instituted in such a Court, other than a proceeding for execution of an order or decree. It is a temporary order during litigation for a ruling or decision that is not the final judgement of the case. - I opine that, whereas the Applicant refers to the old plaint when they should have 30 referred to the Amended plaint already on Court record, the instant application is an example of an interlocutory application. The Applicant is therefore allowed under the law to make statements of his own belief provided he provides the grounds for his belief. On perusal of the Affidavit in support of the application, in the Applicant's averments - of paragraphs 2, 3, 4, 5 and 13, the Applicant makes reference to the plaint filed by the 35 Respondents in Civil Suit No. 0029 of 2022. These paragraphs on the face of it, in comparison to Applicant's written submissions appear to be misplaced and they thus ought to have been presented in the Applicant's submissions. - I therefore find that paragraphs 2, 3, 4, 5 and 13 of the affidavit in support of this 40 application do not comply with Order 19 rule 3(1), are liable to be struck out and the preliminary point of law raised by the Respondents is allowed.

$\Lambda$ $\lambda$ $\Lambda$

I shall now proceed to deal with the issues in contention.

#### $\mathsf{S}$ <u>Issue:</u>

Whether Civil suit No. 0029 of 2022 an action for a share or interest in estate of Oculmungu John who died in 1977 is time barred?

### **Determination**

# **Submission of Applicant**

Counsel contends that Civil Suit No. 0029 of 2022 an action for a share or interest in estate of Oculmungu John who died in 1977 is time barred for being lodged out of the 12-year rule. The right of action extinguished in 1989, even if it was fraud over the 15 purported estate at the instance of the Applicant, 25 years after the right of action was extinguished. The right of action over the estate was already time barred and had extinguished in 1989 and cannot be retrieved 45 years later by any action.

- Section 5 of the Limitation Act Cap 80 provides for a period of twelve years from the 20 date on which the right of action accrued. Section 6(2) provides for the right of recovery of land of a deceased person to be deemed to have accrued at the date of his / her death. It is without any iota of doubt for both parties that the right of action of the Respondents accrued in 1977 when their late father died. Reference was made to the case of Mugenyi - & Ors vs Kateeba & 3 Ors CA No. 162 of 2021 which dealt with a similar issue. Section 25 16 also buttresses the same position. The Respondents pleading of fraud cannot cure the fact that the suit is time barred.

The Applicant concludes with a prayer that Civil suit No. 0029 of 2022 be dismissed with costs and costs of the Application to the Applicant. 30

## <u>Submission of Respondent</u>

Counsel for the Respondent submits that Section 25 of the Limitation Act Cap 80 provides that an action in fraud starts to run when the aggrieved party first gets to know 35 of the fraud. The Respondents have indicated in their submissions that they only became aware of the Applicant's fraud in 2021 and filed Civil Suit No. 0029 of 2022 only a year later which is in no doubt was without delay as accordingly to paragraph 6 of their affidavit in reply. The Applicant indicates in his pleadings that he acquired certificate of 40

- title in 2014 through purchase and not through adverse possession, which makes it proper for Court to investigate the Applicant's acquisition of the suit land through a full hearing and hence this application is premature. It is the position of law that Courts do not entertain or hear hypothetical cases that are academic but matters where real-life disputes exist. Counsel for the Applicant seems to suggest that whenever a person who - owns property dies, the beneficiaries of the estate should start flooding Courts without 45 any real conflict. Article 26(1) of the Constitution of the Republic of Uganda, 1995

allows property to be jointly owned, hence this suit land as family property owned by the 5 Respondents and other beneficiaries including the Applicant. The facts of the Mugenyi & Ors case referred to are distinguishable from the instant case as the Respondents therein challenged distribution of the estate of their late father where they had benefited, 33years later. In the instant case, both the Applicants and Respondents have lived in 10 unity and shared the suit land without any lawful distribution even with structures thereon because it is family property.

The Respondents conclude with a prayer that this application is disallowed with costs for being academic, misleading and without merit.

## **Consideration of Court**

Section 6(2) of the Limitation Act Cap 80 states that; where any person brings an action to recover any land of a deceased person, whether under a will or on intestacy, and the deceased person was, on the date of his death, in possession of the land or,..., the right of action shall be deemed to have accrued on the date of his or her death.

Section 16 states that; subject to sections 8 and 29 of this Act and subject to the other 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.

Section 20 states that; 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 30 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.

The Applicant in their submissions make reference to the case of Mugenyi & Ors vs Kateeba & 3 Ors CA No. 162 of 2021.

My assessment of the case of Mugenyi & Ors vs Kateeba & 3 Ors CA No. 162 of 2021 is that the facts of the same can be clearly distinguished from the facts of the instant case. 40 The Parties in that case were challenging distribution of the estate of their late father where they had benefited 33years later to the detriment of the Appellants after a transparent distribution. I agree with the assessment of the Respondents herein. The case of Mugenyi & Ors vs Kateeba & 3 Ors CA No. 162 of 2021 though a good authority

can be distinguished from the instant case. The Parties in the instant case seem to all 45

$2006$

have lived in unity on the suit land and did not at any point distribute the estate of their $5$ late father.

Whereas I agree with the interpretation of Sections 6(2), 16 and 20 of the Limitation Act by the Applicants, I disagree with how this interpretation is applied to the facts in the instant case. The Applicant asserts that he acquired the suit land through purchase, not adverse possession. His interpretation of these sections therefore cannot apply to the facts herein as all the parties to this suit are beneficiaries of the estate of the late Oculmungu John and both parties agree to this fact in their pleadings.

- The issue in contention then moves to the real process of acquisition of the suit land and 15 its title by the Applicant. These are the exact issues that the main suit touches, they require evidence and the same can not to deliberated on in this application without evidence and the entire hearing of the suit. - Section 25 of the Limitation Act states that an action in fraud starts to run when the 20 aggrieved party first gets to know of the fraud. I cannot get into issues in this application that require submission of evidence in a full suit and that is where the issues lead us. This application is therefore premature as the issues raised require a full hearing to be determined. The Respondents acknowledge that they are beneficiaries of the estate of the late Oculmungu John, and the Applicant also acknowledges that he is a brother to the - 25 Respondents from a different mother. The Applicant alleges that he purchased the suit land and owns it from his own money that is why he processed a personal certificate of title, but the Respondents challenge his purchase of the suit land and allege fraud on his part, they state that the suit land is owned by all the beneficiaries of the estate of the late Oculmungu John jointly and not the Applicant alone as he alleges. 30

The issues in contention in this application clearly cannot be deliberated on without resolving the issues in the main suit.

I accordingly dismiss this application, issues of fraud and its proof, acquisition of the 35 certificate of title by the Applicant and assessment of evidence to decide ownership of the suit land shall all be dealt with in the main suit.

The Application is accordingly dismissed.

I so order.

**Collins Acellam** 45 Judge

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