Mugisha v The Registered Trustees of Fort Portal Diocese (HCT-01-CV-CS-0024 OF 2024) [2025] UGHC 536 (4 July 2025)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

# **HCT-01-CV-CS-0024 OF 2024**

**MUGISHA JOHN PAUL :::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

# **VERSUS**

# **THE REGISTERED TRUSTEES OF FORT PORTAL DIOCESE :::::::::::::::::::::::::::::::: DEFENDANT BEFORE: HON. JUSTICE VINCENT WAGONA RULING ON PRELIMINARY OBJECTIONS**

#### **Introduction**:

1. This Ruling addresses two preliminary objections raised by the Defendant in **HCT-01-CV-CS-0024 OF 2024, Mugisha John Paul vs. The Registered Trustees of Fort Portal Diocese**. The Plaintiff, Mugisha John Paul, acting as administrator of the estate of the late Paul Karyabakora, filed the instant suit seeking declarations of ownership, an eviction order, a permanent injunction, general damages, and costs of the suit in respect of the suit land at Mutwe Kyamwera village, Nkoma Parish, Nkoma Sub County, Kamwenge District. The Plaintiff asserts that the deceased owned the land through adverse possession and


had, on 5th April 1982, temporarily permitted the Defendant to construct a semipermanent church. The Plaintiff further states that attempts by the beneficiaries to reclaim the land in 2012 resulted in their arrest for criminal trespass.

2. The Defendant, through Counsel *Mr. Mirembe Gerald*, raised two preliminary points of law: first, that the Plaintiff's suit is time-barred under the Limitation Act, Cap 290, and second, that the Plaint does not disclose a cause of action. The Plaintiff, represented by *Mr. Aijuka Joab*, countered these objections, arguing that the suit is a beneficiary claim brought by an administrator and thus not subject to the limitation period as per **Sections 15, 19(1)**, and **20** of the **Limitation Act**, and **Section 25** of the **Succession Act**. The Plaintiff also maintained that the Plaint adequately discloses a cause of action.

## **Representation:**

3. *Mr. Aijuka Joab* represents the Plaintiff, while *Mr. Mirembe Gerald* represents the Defendant. Both counsel have submitted written arguments which this Court has duly considered.

#### **Defendant's Submissions on the Preliminary Points of Law**:

4. The Defendant's counsel, *Mr. Mirembe Gerald*, submitted that the preliminary points of law are raised under **Order 6 Rule 28 & 29**, and **Order 7 Rule 11** of the **Civil Procedure Rules**.


- 5. **On the first preliminary point of law regarding limitation**, counsel argued that **Section 5** of the **Limitation Act, Cap 290** stipulates a twelve-year limitation period for actions to recover land, commencing from the date the right of action accrues. **Sections 6** and **11** further clarify that the right of action accrues when a person is dispossessed or discontinues possession, or when adverse possession begins. Counsel highlighted that **Section 16** of the same Act extinguishes the title of a person to land upon the expiration of the limitation period. - 6. Applying this to the instant case, the Defendant pointed to Paragraph 4(d) of the Plaint, which states that the deceased permitted the Defendant to build a church on the suit land on 5th April 1982. Furthermore, Paragraph 4(f) indicates that the beneficiaries attempted to reclaim the land in 2012, leading to their arrest for criminal trespass, evidenced by a Police Bond dated 11th September 2012. The Defendant contended that the Defendant's occupation of the land in 1982 was unchallenged until 2012, meaning the cause of action accrued in 1982. Given that the suit was filed in 2023, the Defendant argued it falls outside the twelve-year limitation period. Counsel cited **Asian Property Custodian Board vs. Dr Masambis, CACA No. 04 of 2004**, and prayed that the Court finds the suit statute-barred as per Order 7 Rule 11(d) of the Civil Procedure Rules.


7. **On the second preliminary point of law concerning the disclosure of a cause of action**, counsel analyzed Paragraphs 4 and 5 of the Plaint. He argued that the Plaint does not demonstrate how the Defendant is privy to the purported memorandum (Annexture B). Furthermore, counsel submitted that the Plaint fails to demonstrate the Plaintiff's rights and interest in the suit land, how these rights have been violated, and that the Defendant specifically violated them, thereby failing to meet the requirements of **Order 7 Rule 1(e)** of the Civil Procedure Rules. Consequently, the Defendant prayed for the Plaint to be struck off the court record under **Order 11(a)** of the **Civil Procedure Rules** with costs.

#### **Plaintiff's Submissions in Response to the Preliminary Points of Law**:

8. The Plaintiff's counsel, *Mr. Aijuka Joab*, countered the Defendant's arguments.

**Regarding the first preliminary point of law on limitation**, the Plaintiff emphasized that the suit was filed by him in his capacity as an administrator and in the interest of the beneficiaries of the late *Paul Karyabakora's* estate, who died in 1997. Counsel relied on **Section 15** of the **Limitation Act, Cap 290**, which states that an administrator of a deceased person's estate is deemed to claim as if there were no interval between the death and the grant of letters of administration for actions concerning the recovery of land. He further cited **Section 25** of the **Succession Act**, which provides that all property of an intestate devolves upon


the personal representatives in trust for the beneficiaries. The Plaintiff argued that **Section 20** of the **Limitation Act**, concerning claims to personal estates, is qualified by **Section 19(1)**. **Section 19(1)** stipulates that no period of limitation applies to an action by a beneficiary under a trust in respect of fraud, fraudulent breach of trust, or to recover trust property from the trustee. Counsel cited **George Lukanga & Anor vs. Patrick David Kanakulya, HCCS No. 42 of 2008**, where it was held that the twelve-year bar to a beneficiary's claim is qualified where fraud or fraudulent breach of trust by the trustee is alleged. Therefore, the Plaintiff contended that the suit, being a beneficiary claim and not a personal one, is not time-barred.

9. **Regarding the second preliminary point of law concerning the disclosure of a cause of action**, the Plaintiff submitted that the Plaint clearly establishes his succession right as an administrator and beneficiary (along with other beneficiaries) to the estate of the late *Paul Karyabakora*. He asserted that this right has been violated by the Defendant's trespass on the suit land, which is claimed to be part of the deceased's estate. The Plaintiff maintained that the Defendant is solely liable for taking possession and refusing to hand it over to the rightful beneficiaries. Counsel relied on the principles laid out in **Auto Garage vs. Motokov [1971] EA 514**, arguing that the Plaint indeed discloses a


cause of action against the Defendant. The Plaintiff therefore prayed for the Defendant's objections to be overruled with costs.

## **CONSIDERATION BY COURT**:

## **Issues for Determination:**

10. I will resolve the following issues arising from the preliminary objections:

*(1)Whether the Plaintiff's suit is barred by the limitation of actions.*

*(2)Whether the Plaintiff's suit discloses a cause of action.*

## **Resolution of Issues:**

## **Issue 1**: **Whether the Plaintiff's suit is barred by the limitation of actions.**

11. In **Uganda Revenue Authority vs. Uganda Consolidated Properties Ltd (1997 -2001) UCL 149** *Justice Twinomujuni JA* observed that: *"Time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with"*. **In Francis Nansio Michael vs. Nuwa Walakira (1993) VI KALR 14** the Supreme Court held that clearly if the action is time barred then that was the end of it.

12. In an action for the recovery of land, **Section 5** of the Limitation Act mandates that such an action must be brought within **twelve years** from the date the right of action accrued. Sections 6(1) and 11(1) clarify that this right accrues when a person is dispossessed of the suit land or when adverse possession commences.


Once this period expires, the Plaintiff's right of action is extinguished and becomes unenforceable, rendering the suit statute-barred. This principle was reiterated in **Odyek Alex & Anor vs. Gena Yokonani, Civil Appeal No. 09 of 2017**. To determine if a suit is time-barred, the court primarily refers to the plaint and its annexures, and the timelines pleaded by the plaintiff as to when the cause of action arose.

- 13. The Defendant argues that the cause of action arose in 1982 when the deceased purportedly permitted temporary use of the land, and since the suit was filed in 2023, it is well beyond the twelve-year period. However, the Plaint specifies in Paragraph 4(d) that the permission granted was **temporary**. A temporary permission implies that the initial occupation by the Defendant was not adverse in nature. Adverse possession, which triggers the limitation period under **Section 11** of the **Limitation Act**, requires possession that is hostile, exclusive, open, continuous, and under a claim of right. Where possession begins with permission, it is generally not considered adverse until there is a clear act of repudiation of the permission by the licensee and notice of such repudiation to the licensor. - 14. The Plaint states in Paragraph 4(f) that the beneficiaries attempted to reclaim the land in 2012 and were met with resistance, leading to their arrest for criminal trespass, as evidenced by a Police Bond dated 11th September 2012. This act of


resistance by the Defendant, and the subsequent arrest of the beneficiaries, can be construed as the point at which the Defendant's possession ceased to be permissive and became adverse, or at least the point at which the Plaintiff's right to recover the land was unequivocally denied. It is at this point, when the temporary permission was purportedly revoked by the Plaintiff's agents (the beneficiaries) and the Defendant refused to vacate, that the cause of action for recovery of land would accrue.

- 15. In my view therefore, the cause of action for recovery of land is deemed to have accrued in **2012**, when the beneficiaries attempted to reclaim the land and faced resistance from the Defendant. The suit filed in **2023** would fall within the twelve-year limitation period since the period would run from 2012, not 1982. - 16. Furthermore, the Plaintiff's claim is brought in his capacity as an administrator of the estate of the late *Paul Karyabakora*. **Section 15** of the **Limitation Act, Cap 290**, is crucial here and states that: *"for the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration."* This provision effectively backdates the administrator's right to sue to the date of the deceased's death. However, this primarily addresses the

 *locus standi* of the administrator, ensuring they are not prejudiced by delays in obtaining letters of administration. It does not, on its own, extend the substantive limitation period if the cause of action accrued before the death or if the deceased's right to sue was already extinguished.

- 17. The Plaintiff also invokes **Section 19(1)** of the **Limitation Act**, read with **Section 20**, asserting that the suit is a beneficiary claim under a trust and thus exempt from the limitation period. **Section 19(1)** states: *"No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action— (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) to recover from the trustee trust property or the proceeds of the trust property in the possession of the trustee, or previously received by the trustee and converted to his or her use."* - 18. Here, the Defendant is not alleged to be the trustee. The Plaintiff's case is that the Defendant is a trespasser, not a trustee holding the land on behalf of the beneficiaries. Therefore, the exceptions provided under **Section 19(1)** of the **Limitation Act**, which apply to actions *by a beneficiary against a trustee*, are not directly applicable in this suit against an alleged trespasser. The case of **George Lukanga & Anor vs. Patrick David Kanakulya, HCCS No. 42 of 2008**, cited by the Plaintiff, deals with a beneficiary's claim against an


**9 |** P a g e

administrator (a trustee), which is distinct from the current scenario where the claim is against a third-party alleged trespasser.

- 19. However, the core argument remains that the Defendant's possession was initially permissive. In such circumstances, the limitation period for recovery of land does not begin to run until the licensee's possession becomes adverse to the owner's title. This occurs when the licensee, by word or deed, repudiates the license and asserts a hostile claim to the land, and this repudiation is brought to the knowledge of the owner. The Plaint explicitly states that the beneficiaries attempted to claim the land and were arrested in 2012. This sequence of events, as pleaded, suggests that 2012 is the earliest point at which the Defendant's occupation could be unequivocally considered adverse and the right of action for recovery of land accrued. - 20. In **Sanyu Lwanga vs. Attorney General, S. C. C. A No. 8 of 1999**, it was held that where possession begins with the permission of the owner, it cannot be adverse until such permission is withdrawn and the person in possession asserts a claim adverse to the owner's title. Similarly, in **Kasozi vs. Kawooya [1979] HCB 16**, it was established that possession taken with the consent of the owner cannot be adverse. It must be demonstrated that the consent was withdrawn and the possessor continued to occupy the land in defiance of the owner's rights.


21. Based on the pleadings, the Plaintiff has alleged that the Defendant's occupation was temporary and by permission. The point at which this permission was unequivocally withdrawn and the Defendant asserted a hostile claim is presented as 2012. Therefore, applying the principles of limitation to a permissive occupation, the cause of action for recovery of land accrued in 2012. Since the suit was filed in 2023, it falls within the twelve-year statutory limitation period. Therefore, the preliminary objection that the suit is time-barred cannot succeed at this stage, as the Plaint, on its face, indicates that the cause of action accrued within the statutory period. The first preliminary objection is overruled.

## **Issue 2**: **Whether the Plaintiff's suit discloses a cause of action.**

22. A cause of action connotes every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. (See **Glady Nduku Nthuki vs. Letshego Kenya & Anor, Kenya High Court Civil Suit No. 007 of 2021**). In **Kusum Ingots & Alloys Ltd. vs. Union of India, (2004) 6 SCC 254)**, the Supreme Court of India interpreted the term *'cause of action'* to mean *"every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court"*. It is that bundle of facts which,


taken together with the applicable law, entities the plaintiff to relief against the defendants.

- 23. Therefore, for one to satisfy court that he or she has a cause of action, he or she must plead facts in the plaint which if proved would entitle him to judgment in respect of the claim in the plaint. The plaintiff must prove that he enjoyed a right which is protected by statute, common law or equity, that that right was violated and that the defendant is responsible for such violation to entitle him or her to the reliefs sought. (See **Tororo Cement Co. Ltd vs. Frokina International Ltd SCCA No. 2 of 2001**). The concept of a "cause of action" is fundamental to civil litigation, and as established in the *locus classicus* case of **Auto Garage vs. Motokov [1971] EA 514**, for a plaint to disclose a cause of action, three essential elements must be present: namely, the Plaintiff must have enjoyed a right, the right must have been violated, and the Defendant must be liable for that violation. - 24. In ascertaining whether a plaint discloses a cause of action or not, court should limit its self to the plaint and the annexures thereto. (See **Kebirungi vs. Road Trainers ltd & 2 others [2008] HCB 72)**. A party's claim against the defendant must be disclosed in the plaint and not any other subsequent pleadings. A party for instance cannot claim that the cause of action is well pleaded in the reply to the written statement of defense since a reply is not a pleading that commences


an action in law. (See **Mwesige Richard vs. Kazooba Peter & 2 others, HCCS No. 036 of 2022**). In **Yaya Towers Limited vs. Trade Bank Limited (In Liquidation) Civil Appeal No. 35 of 2000** court expressed itself thus: *"No suit should be summarily dismissed unless it appears so hopeless that it is plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment."* In the instant case, a careful examination of the Plaint reveals the following:

- a) The Plaintiff enjoyed a right: - 25. Paragraph 1 of the Plaint identifies the Plaintiff, Mugisha John Paul, as the administrator of the estate of the late Paul Karyabakora. Paragraph 4(b) explicitly states that the deceased, Paul Karyabakora, owned the suit land by way of adverse possession. Furthermore, Paragraph 4(d) indicates that the deceased granted "temporary permission" to the Defendant to construct a church on the land. The Plaintiff, acting as administrator, stands in the shoes of the deceased and, by virtue of Section 25 of the Succession Act, all property of an intestate devolves upon the personal representatives in trust for the beneficiaries. This establishes the Plaintiff's claimed right to the suit land, derived from the deceased's alleged ownership and his role as administrator.


b) That right was violated:

- 26. The Plaint alleges that despite the initial temporary permission granted to the Defendant (Paragraph 4(d)), attempts by the beneficiaries to reclaim the land in 2012 resulted in resistance from the Defendant and the beneficiaries' arrest for criminal trespass (Paragraph 4(f)). The Plaintiff seeks, among other reliefs, an eviction order and a permanent injunction, which are remedies typically sought when a right to land, such as ownership and peaceful enjoyment, has been violated by another party's unlawful occupation or interference. The Defendant's alleged refusal to vacate and the subsequent arrest of the beneficiaries clearly suggest a violation of the claimed right to ownership and possession. - c) The Defendant is liable for that violation: - 27. The Plaint specifically names "The Registered Trustees of Fort Portal Diocese" as the Defendant and alleges that it was this Defendant to whom temporary permission was granted, and it is this Defendant who resisted the attempts to reclaim the land and is currently in possession. The Plaintiff maintains that the Defendant is solely liable for taking possession and refusing to hand it over to the rightful beneficiaries. This directly links the alleged violation (unlawful occupation and refusal to vacate) to the Defendant's actions.


- 28. The Defendant's argument that the Plaint does not demonstrate how the Defendant is privy to the purported memorandum (Annexture B) or how the Plaintiff's rights were specifically violated by the Defendant does not, at this preliminary stage, negate the existence of a cause of action. The Plaint clearly asserts a relationship (temporary permission) between the deceased and the Defendant regarding the land. Whether the Defendant was privy to a specific memorandum or whether the initial permission was indeed temporary are matters of evidence to be proved during the trial. For the purpose of disclosing a cause of action, the Plaint's assertions that the deceased granted permission to *the Defendant* and that *the Defendant* subsequently refused to vacate suffice to establish a prima facie link and alleged liability. The Plaint, by alleging the Defendant's continued occupation without lawful right after the purported revocation of permission, and their resistance to the beneficiaries' attempts to reclaim the land, sufficiently demonstrates how the Defendant is alleged to have violated the Plaintiff's (and the estate's) rights. - 29. Therefore, based on the pleadings in the Plaint, the Plaintiff has adequately set out facts which, if proven at trial, would entitle him to the reliefs sought. The Plaint demonstrates that the Plaintiff, as administrator, claims a right to the land on behalf of the deceased's estate, alleges that this right has been violated by the


Defendant's continued occupation and refusal to vacate, and attributes this violation directly to the Defendant. The suit is therefore not "plainly and obviously" hopeless or beyond redemption.

## **Conclusion**:

30. For the reasons stated above, I find that the Plaintiff's suit is not barred by the limitation of actions, and that the Plaintiff's suit discloses a cause of action against the Defendant. Accordingly, the preliminary objections raised by the Defendant are hereby overruled. The Plaintiff's suit shall proceed to be heard on its merits. Costs for these preliminary objections shall be in the cause.

I so Order.

## **Dated at Fort Portal this 4th day of July 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**

**Ruling delivered on 14th July 2025.**