Kawuma Ngobya v Nsambu and Another (Miscellaneous Application 1111 of 2024) [2024] UGHCLD 263 (7 November 2024)

#### THE REPUBLIC OF UGANDA

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

### **MISCELLANEOUS APPLICATION NO. 1111 OF 2024**

## (ARISING FROM HCCS NO. 108 OF 2024)

### ASHE KAWUMA NGOBYA ::::::::::::::::::::::::::::::::::::

### **VERSES**

#### 1. BONNIE NSAMBU

## <table> 2. CHRISTINE NSAMBU ::::::::::::::::::::::::::::::::::::

## **RULING**

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

The Applicant moved this court by way of notice of motion brought under the provisions of Order 52 r 1, 2 and 3, Order 6 rules 1, 3, 28, 29 and 30 (1), Order 7 rule 11 (a), (d) and (e) & 12, Order 15 rule 2 of the Civil Procedure Rules; Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act Cap 282 for orders that: -

- a. The Respondents/ Plaintiffs lack the locus standi to institute the suit from which the application arises. - b. The Respondents lack locus standi to engage the Applicant's Kibanja interest situated on the suit property. - c. The suit property comprised in Block 486 Plot 17 Busiro, Kajolya Wakiso on which the Applicant is situated belongs to the estate of the late Alifonsio Kintu. - d. The Respondents/Plaintiffs unlawfully transacted with a person who did not have letters of Administration in the process of acquiring the suit property. - e. The Respondents/Plaintiffs therefore do not lawfully own/or are not lawfully registered as proprietor of the suit property on which the Applicant's kibanja is situate.

Page 1 of 9

7/11/2024

$\mathsf{S}$

- f. The Adrninistrators ol the Ilstate ol'the lale Alifonsio Kintu and /or benefioiaries are the lawltl people to engage the Applicant regarding the issues of the Kiban ja. - g. 'l'he I{espondcnts' suit is an outright abuse ol-court process. - h. The Respondcnts' plcadings are thcrefore misconceived, fiivolous and /or vcxatious. - i. The Costs of the Application.

Further, the Applicant also seeks consequential orders:- that the transaction and/or transler of the suit property in the names of the Itespondents is null and void; that the suit property bc transltrred back into the names of Alifonsio Kintu and then into the narncs of tl'tc adrninistrators who have a lawful mandate to deal with the said estate: that all clairns by the Respondents and/or their agents, servants, ernployees. assignces. legal rcpresenlatives or anyone deriving right fionl thcm regarding thc suit property are null and void.

40 45 The grounds ol'this application arc supported by the Applicant's Aflidavit. 1'hey are; that thc Applioant is thc undisputcd owner ol a Kibanja measuring 4 acres out of the 5 acrcs ol'Mailo intcrcst comprised in Block 486 Plot l7 Land at Busiro Kajolya Wakiso District. 'I'hat in 2007, the Respondents unlawl'ully purchased the said property frorn Ben Mayanla who had no right and was not an administrator ol'the Estate ol'the Lale Alifonsio Kintu.'l'hat the Respondents do not lawfully own the land or wcrs not lawfully registered on the same hence lack locus standi to cngagc thc Applicant's interest. That the Administrators of the estate of thc latc Alilbnsio Kintu arc thc rightlut people to institutc the suit against the applicant and thc Rcspondcnts' plcadings deserve to be struck off for being misconceived. Iiivolous ancl vcxatious.

'fhe Applicant dcposed that thc unlawful transaction/ transler oFthe suit property tiorn the late Alfbnsio Kintu othcr than by the rightful beneficiaries was null and void. That this courl has porvcrs to ordcr the suit property to be translbrred back to the late Alilbnsio Kintu's names. then later to the Administrators names upon fresh application. l'hat the Itcspondents Ijled a sirnilar claim on the same subject nratter against dillerent people vide HCCS No. I 82 o12020 but the parties therein neglected to address the issues of law thus cngaging court's valuable time unreasonablv.

7b Page 2 of 9

7 t11t2024

The Application was opposed by llonnie Nsambu (lhe I't Respondenl herein). He deposed that hc is a joint registered proprietor with the 2"d Respondent on land cornprised in Block 486 I'lot l7 at Kaiolya (Mazzi) Wakiso. That the status ofbeing the registercd proprielors. o\\,ners, and possessors ofthe suit land gives the Respondents thc right and standing to file the rnain suit. That the suit land does not belong to thc cstatc ol'thc late Alifbnsio Kintu or to his beneliciaries. That the Applicant does not o\l'n any kibanja on the suit land and that the Applicant and his co-dclbndants were sued for trcspass which occurred in October 2023 and.lanuary 2021. l'hat the Applicant and his co-delbndants admitted undcr paragraph tl ol'thc ?nd-6'h Del-endant's written statelnent of delense that the l{espondcnts bought a tnailo intercst in the suit property and should not be allowcd to depart lrom the admission. That the I{espondents have never been involved in any unlawful transactions and this court cannot detennine questions of ownership and proprietary rights over the suit land in this application. 'fhat liling sevcral suits against several persons lbr wrongs committed at dill'ercnt lirnr:s; is not wrongi and that the trcspass in CS No. 182 oi 2020 was comrnitted bclirrc and during 2020 while thc trcspass in the main suit was comrnilted between .luly 2023 and January 2024.'fhal the two suits are distinct, thc partics arc n01 thc salrc as w'cll as the acts oftrespass in both suits. I take notc ol'the Applicant's allldavit in rc.ioinder on record.

Legal representation: thc Appiicant was represented by Counscl Percy Aubrey while Counsel Nabalanzi llrcnda rcprcscnted the I{espondents. The parties' filed written subrnissions rvhich I havc considcrcd.

Counsel for the Applicant did not raise any issues in his submissions. However, Counsel fbr the Respondents proposed the following; -

- i. Whether there is a propcr and competent application lor determination on the basis ol'a prclinrinary ob.icction? - ii. Whether the l{cspondents have locus to institute CS No. 0108 of 2024? - iii. Whether the land compriscd in Ulock 486 Plot l7 Kajolya Wakiso District belongs to the l{cspondents? - iv. Whether CS No. 010812024 is an abuse of court process, frivolous and vexatious?

Page 3 of 9

v. What arc the rerncdics availablc to the parties?

11.- T lt - 2a7+

7 tl1t2024

It sufflccs to state that Counscl fbr both parties subrnitted about the legality of the main suit on ground that it off-ends the Lis pendens rule.

95 Having perused the pleadings and submissions ofCounsel, I hnd it necessary to invoke O.l5 R.5 of the Civil Procedure Rules and amend the above issues. For that cause, the issues filr detcrmination arc:-

- L Whethcr thc Rcspondents havc locus to institute CS No. 0108 of 2024? - 2. Whether CS No. 0108 o12024 off'ends the Lis pendens rule? - 3. Whether the land comprised in Block 486 Plot l7 Kajolya Wakiso District belongs to the Respondcnts? - 4. What are the remedies available to the parties?

## Issue l. Whether the Responde nts have locus standi to institute CS No. 0108 of 2024?

Counsel lbr the Applicant rclicd on the Supreme Court Case of Emmanuel Lukwajju Vs Kyaggwe Coffee Curing Estates Ltd & Anor CA No. 2 of 2016 where it was held that:

110 115 ... Having a legal standing in civil matlers or cose, means that a person who has sued another has a cause of ac'liott...an inquiry into the exislence of locus is therefore o question of lat,. The ralionale behind this is to avoid the abuse of court process by litigants who have no standing yet wish to engage court's time. Where the loctrs standi is disputed by another, the court is obliged as a poinl of law to inquire into the dispute of the standing and pronounce itself al the earliest opportunily b avoid unnecessary delay and embarrossment and/or costs among ot hers.

120 He subrnitted that the Respondcnts purohased the suit property in 2007 which constitutes the estatc ol'the late Allbnsio Kintu. That the said estate did not have administrators a1 thc time olpurchasc as thc process of adlninistering it started in 2020 vidc Mengo Adn-rin Causc No. 2279 o12022. Therefore, that the transaction occasioned by thc I{cspondonts in 2007 were unlawful.

Counsel lurther relied on Secliorr I tl7 and 197 olthe Succession Act Cap 268 and argued that the law prohibits any dealing with the property of an estate without due authority. He also cited the casc ol'Nakayima Joyce & 3 Ors Vs Nalumansi 125

)a4 ,h \_J-t1..'\-

Page 4 of 9

<sup>7</sup>t11t2024

**Kalule & 2 Ors CA No. 111 of 2019** where court found that a sales transaction on estate property without letters of administration are unlawful. That the Respondents' sale transaction was null and void hence rendering the respondents' interest in the suit property barred/bad.

In reply, Counsel for the Respondents relied on the case of **Dima Dominic Poro** Vs Inyani Godfrey & Anor HCCA No. 17/2016, Section 55, 59, 120 and **Section 160** of the Registration of Titles Act and argued that the Respondents have locus standi to institute CS No. 0108/2024 since they have sufficient personal interest in the suit being the registered proprietors of the suit land from 4/12/2009. He also relied on the cases of **Robinah Namakula Masinde Vs** Matsiko Sam HCMA No. 580 of 2021 and Justine EMN Lutaaya Vs Stirling Civil Engineering Co. Ltd SCCA No. 11 of 2002 where Mulenga JSC (as he then was) held that a person holding a certificate of title to land has legal possession of that land and can commence a suit in trespass.

## **Determination of Issue 1.**

In **Dima Enterprises Poro Vs. Inyani Godfrey, (supra)**, my brother Mubiru J described locus standi as "a place of standing. It means a right to appear in court 145 and conversely to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding".

In this case, the Applicant disputes the Respondents' locus standi in bringing CS No. 0108/2024 on ground that they unlawfully transacted with a person who did 150 not have letters of administration in the process of acquiring the suit land; and that the proper persons to institute this suit against the Applicant are the Administrators of the estate of the late Alifonsio Kintu (see. Paragraphs 7, 10, 11, 12 and 13 of the Affidavit in support of the Notice of Motion).

That said, I find it inappropriate to raise a preliminary objection where the matter raised involves a considerable amount of evidence. This is because a preliminary objection cannot be raised if any fact has to be ascertained by evidence (See; Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] **E. A).** Similarly, Counsel for the Respondents stated the same point when he cited National Agricultural Research Organization Vs Mountain of the Moon University & 2 Ors CS No. 14 of 2021 and argued that a point of law should be

Page 5 of 9

Adding

7/11/2024

clear from the pleadings and should not require any analysis of evidence or going through the facts and evidence of the parties.

In this case, the finding that Respondents lack locus standi because the person they dealt with in the acquisition of the suit property did not have letters of administration requires a considerable amount of evidence. For instance, the court would have to look into the legality of the transaction between the Respondents and a one Mayanja Ben; and whether the transfer of the suit land into the names of the Respondents was done legally for them to have acquired good title.

On the other hand, the plaint, as is, discloses that the Respondents have a right in the suit land. The rest of whether the said alleged right was acquired under an illegal transaction hence being void ab initio will be dealt with in the full. Accordingly, I find that the Respondents have locus standi.

The first issue is resolved in the affirmative.

## Issue 2: Whether CS No. 0108 of 2024 offends the Lis pendens rule?

In Tindyebwa Stephen Vs Alpha International Investments Ltd HCMA No. 789/2005 Yorokam Bamwine J. (as he then was), held that the provision of Section 6 of the Civil Procedure Act Cap.282 are mandatory terms in that they preclude court from considering a case that is already pending before another court concerning the same dispute.

In Shumuk Springs Development Ltd & 3 Ors Vs Bonney Mwebesa Katatumba & 6 Ors HCCS-0375-2009 Madrama J (as he then was) relied on the said provisions and pointed out that:

first of all, the court has to establish whether there is a previously instituted suit or proceeding between the same parties. Secondly the court has to determine whether the matter in controversy in the second suit is also directly and substantially in issue in a previously instituted suit. Thirdly, this suit *instituted prior in time must be before a court of competent jurisdiction.*

In this case, the Applicant has averred that the Respondent filed a similar claim on the same subject matter against different people vide HCCS No. 182 of 2020. That this court should not allow them to file multiple suits concurrently regarding

Page 6 of 9

Adding 7/11/2024

the same subject matter which amounts to abuse of court process (See 200 *Paragraphs 18, 19 and 20 of the Affidavit in support).*

In reply, the 1<sup>st</sup> Respondent admitted to have filed HCCS No. 182 of 2020 against Kiiza Angela, Lubowa Ben, Muleme Micheal and Luyiga Annet for trespass on the suit land. They however averred that the parties/Defendants as well as the acts of trespass are different in both suits; and that there is nothing wrong with filing several suits against several persons for wrongs they have committed at different times. *(See. Paragraph 14 and 15 of the Affidavit in reply).*

Counsel for the Applicant argued that the matters in both suits are directly and 210 substantially the same, and that the plaintiffs/ Respondents are the same in both suits save for the Defendants who are different. That court should not consider the alternative of consolidation or stay of the suits since CS No. 108 of 2024 pauses grave illegalities which would never be lawfully cured in the Respondents' favor. That consolidation would contaminate the previous suit No. 215 182 of 2020 in which court would have been able to deliver a well-considered judgment without being interfered with the illegalities of CS No. 108 of 2024.

Counsel for the Respondents also argued that for a party to succeed under the lispendens rule, all the elements under Section 6 of the Civil Procedure Act must 220 be met. That the parties in both suits are not the same; and that the time involved in the trespass under the two suits are different.

I have had the benefit of perusing the plaint in Cs No.182 of 2020. The suit was instituted by Bonnie Nsambu and Christine Nsambu against Kizza Angela, 225 Nakityo Dapine, Lubowa Ben, Muleme and Luyiga. They sought the following reliefs: - Fraudulent claims of ownership as beneficiaries on land comprised in Private Mailo Register Busiro Block 486 Plot 17, Kajolya measuring approximately 5 acres; Trespass on the suit property by the Defendants; Permanent injunction against further trespass; Interests and costs. 230

With CS No 108 of 2024, it was also instituted by Bonnie Nsambu and Christine Nsambu against Mugwanya Benjamin, Ashe Kawuma Ngobya, Kanyerezi Moses and Nsubuga Gaster; seeking the following reliefs;- an order of vacant possession, permanent injunction, an order that the Defendants re-erects the Plaintiffs' fence illegally demolished, demolition of the structure illegally

Page 7 of 9

Address

7/11/2024

constructed on the suit land. rernoval ol'caveats lrom the Certifrcate of title of land comprised in Busiro Block 486 Plot 17, Ka.iolya, general damages and costs of the suit.

Frorn the above infirrrnation i1 is clcar that thc two suits (CS No. 182 of 2020 and 108 o12024), both retcr 1o thc sarnc subjecl matter that is Busiro Block 486 Plot 17, Kajolya, the partics in the two suils are certainly different. The cause ofaction in both suits is also diflbrcnt in that. undcr CS No. 182 of 2020 the cause olaction is prernised on liaud with its pafliculars spelt out under paragraph 5 (a) and 8 of thc plaint and trcspass to land. ri,hile thc cause ol'action in IICCS No. 108 o{' 2024 is squarely prcrriscd on trcspass to land.

<sup>250</sup> Therefore. the three (3) laid down tesls lor determining whether a suit off'ends the lis pendens rulc as indicatcd in the case of Shumuk Springs Ltd & 3 Ors Vs Bonney (Supra) havc not been tnct. Therefore. FICCS No. 108 of 2024 is not an abuse of court proccss as therc arc no rnultiplicity ol suits involving the same parties belbre this court.

l-his answers the sccond issuc in thc ncgative.

## Issue 3: Whether thc land comprised in Block 486 Plot l7 Kajolya Wakiso District belongs to the Respondcnts?

'fhis issue is rclatccl 1o ordcrs (c) to (l) in thc application. l hat said, it is evidcnt that thc issue involvcs a Inaltcr ol'orvncrship olthe suit land and that this cannot bc resolved rvithoul cither party leading evidence as required by Section l0l and 102 of the Evidence Act.

In the case of Gunya Company Limited Vs Attorney General (Civil Suit No. 031 Of 201l). my lcarncd brothcr Mubiru .l pointed out that:

An objection should bear the characler of motter lhal can be dealt with intmediately vithoul louching the merits, or involving parties in argumenl of the rnerits of lhe cose. Il should relate lo a moller which can be disposed of by lhe Cottrt al an ettrlv stoge wilhoul examinalion of lhe merit.s. It should

Page 8 of 9 l


<sup>7</sup>t11t2024

therefore be based on pure points of law or on ascertained, undisputed facts and any reasonable inferences that may be drawn from those facts'.

Therefore, delving into the issue would be tantamount to determining the merits 275 of the main suit. For that cause, I resolve this issue in the negative as well.

In conclusion, the application fails and is hereby dismissed with costs.

Signed, dated and delivered at KAMPALA this... T. day of Nove 280

Nabakooza Flavia. K Judge