Kasibbo v Bawube & Another (Miscellaneous Application 2866 of 2024) [2025] UGHCLD 3 (20 January 2025)

# THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

# (LAND DIVISION)

#### **MISCELLENEAOUS APPLICATION NO. 2866 OF 2024**

#### (ARISING FROM CIVIL SUIT NO. 492 OF 2020)

KASIBBO JOSHUA ::::::::::::::::::::::::::::::::::::

#### VERSUS

#### 1. BAWUBE JOHN

<table>

2. LUBEGA RICHARD RESPONDENTS

# BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA **RULING**

# **Introduction;**

1. This was an application by way of Summons in Chamber brought under Section 5 of the Limitation Act, Section 98 of Civil Procedure Act, Section 33 Judicature Act, Order 6 Rules 28 & 29, Order 7 Rules 11(d) & 19 of The Civil Procedure Rules SI 71-1 for orders that: -,

Hamleyey -

- i) The plaint in Civil Suit No. 492 of 2020 be rejected for being barred under the law on limitation or the suit be dismissed for being barred by the law on limitation. - ii) The costs of this application be provided for.

# **Background;**

- 2. The Respondents instituted Civil Suit No. 492 of 2020 with prayers inter alia; a declaration that the Defendant now Applicant unlawfully and fraudulently acquired part of land comprised in Lease Volume 3920 Folio 21 Plot No. 1714 at Kireka Zone D, a declaration that part of the Bibanja/land belonging to the plaintiffs was included in the defendant's certificate of title in Lease Volume 3920 Folio 21 Plot No. 1714 at Kireka Zone D by fraud and misdescription of boundaries, cancellation of the certificate of title and other orders as were set out in the plaint. - 3. The Defendant now Applicant brings this application to have Civil Suit No. 492 of 2020 dismissed on grounds that the same is barred by the law of limitation.

# *Applicant's evidence;*

- 4. The application is supported by an affidavit in support deponed by **Mr. KASIBBO JOSHUA** the applicant which briefly states as follows; - i) That the Respondent filed Civil Suit No. 492 of 2020 against me for recovery of land, the Respondents themselves state in the plaint I acquired in 1995 which is 25 years after the cause of action arose. The Applicant as a Kibanja holder got registered by the Buganda Land Board responsible for the mailo interest in respect of the suit land in 2000 who came and surveyed the land in the presence of the Respondents as neighbors. - ii) That if the cause of action arose in 2000, still the Respondents would be out of time to file a suit against me and even if the impugned lease was granted from 1st January 2004 for 49 years by Buganda Land Board and was registered in March 2004. - iii) That all the above shows that Civil Suit No. 492 of 2020 was filed after 12 years thus barred by the statute of limitation. The Respondents have not pleaded any disability or exception

to justify filing the suit barred by limitation thus the same ought to be rejected and the suit be dismissed.

#### *Respondent's evidence;*

- 5. The application is responded to by an affidavit in reply deponed by **Mr. BAWUBE JOHN** the 1st respondent with authority to depone on behalf of the 2nd Respondent which briefly states as follows; - i) That the application is misconceived, frivolous and vexatious and ought to be struck out with costs, the affidavit in support is full of falsehoods and should therefore be struck off the record. - ii) That it is not true that the cause of action arose in 1995 when the Applicant bought the land, the cause of action arose around 2008 when the Applicant unlawfully entered into my land and constructed a wall on the land and interfered with our rights to the land which is still within the time frame required to file a plaint by the law. - iii) That it is not true that the suit land was surveyed in our presence as the neighbors and the Respondents had never known that the Applicant obtained a certificate of title to the

said land and the cause of action arose in 2008 not 2000 and the suit was filed in 2020 within the Applicable limitation period.

- iv) That we discovered the purported lease title in 2020 when the Applicant showed the leasehold title in the LC1 meeting and the registration was based on fraudulent misrepresentation. - v) That the discovery of fraud on the part of the applicant constitutes the starting point for calculating the limitation period and fraud on his part was discovered in 2020, the same year we filed the plaint. The suit is still within the applicable limitation period, this Application should be dismissed with costs as it has no basis, its intended to waste time and it is an abuse of court process and shall cause injustice if granted.

# *Representation;*

6. The applicant represented himself because his lawyer had another matter whereas the Respondents were represented by Karungi Kellen holding brief for Nsereko Sauda of M/S Nsereko – Mukalazi

& Co. Advocates. Both parties filed their affidavits and submissions which I have considered in the determination of this application.

## *Issues for determination;*

Both parties filed written submissions in which they raised the following issues for resolution by this Court.

- **i) Whether Civil Suit No. 492 of 2020 is barred by time limitation.** - **ii) Whether the Applicant is entitled to the orders sought in the Application.**

**This Court shall proceed to re-frame the issues for proper determination of this application.**

> **i) Whether the Respondents' claim in Civil Suit No. 492 of 2020 is barred by limitation.**

*Resolution and determination of the issues;*

**Whether the Respondents' claim in Civil Suit No. 492 of 2020 is barred by limitation?**

## *Submissions by Counsel for the Applicant*

- 7. Counsel for the Applicant in his submissions relies on the provisions of Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Section 5 of the limitation Act, Order 7 rule 11 (d) and Order 6 rule 28 and 29 of the Civil Procedure Rules. - 8. Counsel relied on a plethora of authorities including but not limited to **Charles Lubowa & 4 others V Makerere University SCCA No. 2 of 2011** that limitation begins to run from when the cause of action arose but one has to determine when the cause of action arose, and to do that one has to look at all facts and the peculiar circumstances of the case. Further that it would appear that in establishing when the cause of action arose it is necessary to consider the pleadings in their entirety to be able to conclude that there were present all the facts which were material to be proved to entitle the plaintiff to succeed. - 9. That the Respondents filed Civil Suit No. 492 of 2020 for declarations that the applicant trespassed on their land which themselves in the plaint state that he did so in 1995 when he settled in the area, that is 25 years after the date the cause of

action arose. The Applicant built his house and fenced it and created an access road while the Respondents as neighbours looked on and he was registered with Buganda land board in 2000 and obtained a lease vide LV 3920 Folio 12 Plot 1714 in 2004 for 49 years.

10. That from the above facts, the Respondents' cause of action arises in 1995 or 2000 or 2004 but not 2008 as alleged by the Respondents and the Respondents did not plead exceptions from the law despite having filed the plaint after the expiration of the period of limitation.

#### *Submissions by Counsel for the Respondents*

11. Counsel for the Respondents in his submissions stated that the cause of action arose in 2008 when the applicant unlawfully entered the Respondent's land and constructed a wall interfering with their rights to the said land. That the interference continued when the Applicant stopped the Respondents from constructing their own wall claiming ownership of the land based on a certificate of title and the filing of the suit in 2020 is well within the 12-year limitation period prescribed by the law.

12. Counsel cited the authority of **Equatorial Agencies ltd & Anor**

**V AG Civil Suit No. 734/94.** where Court held that the limitation period begins to run when the claimant has the right to bring an action to recover the land. That in this case the Respondent's right to bring the action arose in 2008 when the applicant unlawfully interfered with their possession of the suit land.

- 13. Counsel further submitted that fraud suspends limitation and the Respondents only found out in 2020 during an LC1 meeting that the Applicant had fraudulently acquired a certificate of title to part of their land and the limitation period for fraud begins to run from the date the fraud is discovered. - 14. The Applicant argues that his purchase, survey and registration in 1995, 2000 and 2004 bar the suit which argument is misplaced because the Respondents are not challenging the Applicant's purchase perse, but rather the fraudulent manner in which the applicant acquire the title and the right to sue accrued in 2008 when the applicant interfered with the Respondents' rights of ownership not in the years cited by the applicant.

*Analysis by Court.*

- 15. A preliminary objection is a point of law aimed at addressing legal and procedural defects in a case without delving into its substantive merits. It seeks to dispose of the matter entirely or partially at the outset. - 16. A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication of pleadings and which if argued as a preliminary point may dispose of the suit. **(See Mukisa Biscuit Manufacturing company ltd v West End Distributors Ltd [1969] EA 696)** - 17. The Applicant in the instant Application seeks to have Civil Suit No. 492 of 2020 dismissed on grounds that the same is barred by the law of limitation. Section 5 of the limitation Act is to the effect that no action for recovery of land shall be brought after the expiration of 12 years and this time is reckoned from the date on which the cause of action arose. - 18. A cause of action arises when a set of facts gives an individual or an entity the right to seek relief or redress in the Court of law. - 19. I am alive to the principles of law that for there to exist a cause of action, one must have enjoyed a right which right was infringed

upon by the defendant. (*See; Auto Garage and ors vs Motokov*

#### *1971 EA)*

- 20. The trigger points for a cause of action are the date on which the wrongful act was done, upon discovery and on demand and refusal depending on the act complained of. - 21. Whereas in the instant application, the Applicant states that the cause of action arose in three phases, 1995 when the Applicant purchased the suit land, in 2000 when the Applicant surveyed the land and in 2004 when he obtained the certificate of title to the suit land and from all the above years, the Respondents filed their suit out of the 12 years' limitation period window. - 22. **Section 25 of the Limitation Act** provides that where an action is based upon fraud of the defendant or his or her agents the limitation shall not begin to run until the plaintiff has discovered the fraud. - 23. Whereas the Applicant alleged that he processed the certificate of title to the suit land in 2004 which the Respondents seek to cancel on grounds of fraud and misdescription of boundaries, the Respondents contend that they only got to know of the existence of the said title in 2020 during an LC1 meeting.

- 24. It appears to me that the applicant acquired the certificate of title in 2004 and the cause of action accrued from the time the claimant was dispossessed of the land and in the instant case the claimant was dispossessed of the land in 2004. - 25. However, the plaintiffs bring the suit in 2020 long after 12 years have passed. - 26. This court takes cognizance of the fact that fraud forms part of the exceptions to limitations and the limitation time starts to count from the time the fraud was discovered. - 27. I have perused the plaint of the respondents and they don't allude to any of the exceptions for the suit to be barred by limitation. In fact, they approve the fact that the applicant obtained the certificate of title in 2004 however maintain that the cause of action arose in 2008. But the fact that the cause of action arose in 2008 and also the averment that they discovered the fraud later makes no appearance in their pleadings. - 28. The law on preliminary points of law is well settled that the court looks only on the annexures and pleadings and nowhere else. The respondents only allude to those facts and arguments in their affidavit in reply.

- 29. The civil procedure rules under Order 6 r 3 states that a party who intends to rely on the exceptions on limitation, should plead the circumstances that exempt him to the same. The respondents state in their affidavit in reply that they discovered the fraud in 2008 during the LC1 meeting but the same is not pleaded anywhere in the plaint. - 30. Further the applicant states in his written statement of defence under paragraph 9 that the respondents/plaintiffs were present when the surveying was being done by the Buganda land board when the applicant/defendant started processing the certificate of title in 2004. - 31. I am of the view that the respondent's cause of action is one for recovery of land based on impeaching the applicant's title. In the instant suit, the limitation time started to run in 2004 when the applicant acquired the certificate of title to the said land and the plaintiffs/respondents were present when the applicant started the process of acquiring the said certificate of title in 2004, the 12 years period started to run then until 2016 however the main suit was filed in 2020 that's sixteen years from the date when the cause of action occurred.

- 32. In the result, the instant application succeeds with the following orders; - i) That Civil Suit No. 492 of 2020 is hereby dismissed for being barred by the law on limitation. - ii) No order as to costs.

**I SO ORDER.**

## **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

# **20th /01/2025**

**Delivered Electronically via ECCMIS on the 20th day of January 2025.**