Mwanguhya v King Oyo Nyimba Kabamba Iguru (Civil Suit 72 of 2022) [2024] UGHC 760 (20 August 2024)

# **THE REPUBLIC OF UGANDA**

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

# 3 **CIVIL SUIT NO. 72 OF 2022**

**FENEHASI MWANGUHYA ::::::::::::::::::::::::::::::: PLAINTIFF**

# **VERSUS**

6 **KING OYO NYIMBA KABAMBA IGURU ::::::::::::::::::: DEFENDANT**

# **BEFORE: HON. JUSTICE VINCENT WAGONA**

# **RULING ON A POINT OF LAW**

# 9 **Introduction***:*

This ruling resolves the several points of law raised by Mr. Atuheire Timothy, learned counsel for the defendant. When the 12 suit was scheduled for mention, Mr. Atuheire informed court that he had points of law to raise regarding the competence of the suit before court.

# 15 **Background***:*

The plaintiff commenced this suit against the defendant for breach of a lease deed dated 1st October 2009 for purchase of 18 a lease for 49 years for land comprised in Plot 1 at Malibo Road Block 71, Fort portal, seeking orders that;

(a) A declaration that the plaintiff lawfully purchased 21 the lease from the defendant.


- (b) A declaration that the defendant is in breach of the lease agreement. - 3 (c) An order that the plaintiff recover the sum paid to the defendant under the lease agreement with interest. - (d) General damages arising out of the said breach of 6 shs 400,000,000/= and costs of the suit.

It was contended by the plaintiff on 1/10/2009, he entered into a lease agreement with Toro Kingdom for land comprised 9 in Block 73, Plot 1 Malibo road for a period of 49 years. That the agreement was duly witnessed by the agents of the defendant. That the plaintiff paid the agreed consideration 12 of 40,000,000 at contract signing. That further on 7/10/2009, he paid a sum of shs 1,500,000/= as premium and shs 125, 0000 as ground rent. That on 31/10/2009, he further paid shs 75,000 15 as registration fees, certificate and transfer fees and 20,000 as application fees for the form paid on 2/10/2009.

That after the above, the defendant promised to comply and 18 grant the lease and access/possession to the plaintiff which she failed. That the defendant as such breached the terms of the lease agreement and court should be pleased to grant the 21 orders sought.

The defendant denied the claims by the plaintiff and indicated that when the suit comes up for hearing, he would raises 24 several points of law to wit:


- (a) That the defendant is not responsible for the plaintiff's cause of action; - 3 (b) That the suit is barred by limitation; - (c) That the contract upon which the plaintiff's suit rested was executed with a-none existent entity. - 6 Learned counsel for the defendant thus raised several points of law to which he asked court to uphold and consequently strike put the suit with costs.

# 9 **Legal Arguments:**

It was submitted by Mr. Atuheire that the lease deed relied upon by the plaintiff was executed on 1/10/2009 as such the 12 current suit is barred by limitation. He also contended that the lease agreement is between the plaintiff and Toro Kingdom. That Toro Kingdom is a none-existent entity. That the title 15 is registered in the name of Omukama of Toro which under the constitution is the entity mandated to administer properties under the kingdom. That as such the suit by the plaintiff is 18 not maintainable against the defendant. He cited the provisions of Article 246(3) (a) and (b) of the Constitution and the case of *Private Sector Ltd v Omukama of Tooro, HCCA* 21 *No. 002 of 2015* to support his assertions.

He also contended that the suit by the plaintiff talks about trespass yet he has never been in possession as such it is not 24 maintainable. Further, that the defendant is not privy to the

**3 |** P a g e

lease agreement as such cannot be bound by the same. He asked court to uphold the said points of law and be pleased to strike 3 out the suit with costs.

# **Issues***:*

I find the following as the issues at the heart of the points 6 of law raised by Mr. Atuheire for the defendant thus;

- (a) Whether the suit by the plaintiff is barred by limitation. - 9 (b) Whether or not the suit is legally maintainable against the defendant who was not a party to the lease agreement dated 1/10/2009. - 12 (c) What remedies are available in the circumstances?

# **Legal Representation:**

*Mr. Atuheire Timothy* appeared for the defendant while *M/s* 15 *Kaahwa, Kafuuzi, Bwiruka& Co. Advocates* appeared for the plaintiff.

**Consideration by Court:**

18 **Issue No. 1: Whether the suit by the plaintiff is barred by limitation.**

The claim by the plaintiff is for breach of contract. Therefore 21 the applicable provision of the Limitation Act is section 3(a) which provides that; *The following actions shall not be brought*


*after the expiration of six years from the date on which the cause of action arose—(a) actions founded on contract or on* 3 *tort;*

Thus an action which premised on a contract or tort must be commenced in the courts of law within 6 years from the date 6 the cause of action arose. The limitation time for purposes of actions based on contract starts to run not from the time the agreement was made but from the date of default.

9 (See:*Eridadi Otabong Waimo Vs Attorney General SCCA No 6 of 1990 (1992) V KALR*

In *Uganda Revenue Authority Vs Uganda Consolidated Properties*

12 *Ltd (1997 – 2001) UCL 149* **Justice Twinomujuni JA** observed that;

"Time limits set by statutes are matters of substantive

15 law and not mere technicalities and must be strictly complied with"

In *Francis Nansio Michael Vs NuwaWa lakira (1993) VI KALR 14* 18 the Supreme Court held that clearly if the action is time barred then that was the end of it.

That being the case, the Act provides for exceptions to 21 limitation and these are spelt out under section 25 of which provides that;


*25. Postponement of limitation period in case of fraud or mistake*

3 *"Where, in the case of any [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) for which a period of limitation is prescribed by this Act, either —*

*(a) the [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) is based upon the fraud of the defendant* 6 *or his or her agent or of any person through whom he or she claims or his or her agent;*

*(b) the right of [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) is concealed by the fraud of any* 9 *such person as is mentioned in paragraph (a) of this section; or*

*(c) the [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) is for relief from the consequences of a* 12 *mistake,*

*the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, or* 15 *could with reasonable diligence have discovered it; but nothing in this section shall enable any [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) to be brought to recover, or enforce any charge against, or set* 18 *aside any transaction affecting, any property which—*

*(d) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud* 21 *and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or*


*(e) in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction* 3 *in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.*

6 Therefore, the time of limitation provided for under the Act can only be postponed under the exceptions under section 25 which include fraud, mistake and in case of land where the 9 claim is for trespass which is deemed as a continuing tort. Thus, where a party's claim is caught by limitation and the delay was caused by fraud or mistake on behalf of the 12 defendant, such claim can only be maintained upon pleading the exceptions under section 25 which has the effect of postponing the time within which such claim is meant to be commenced. 15 Further, fraud or mistake should not have been known to the claimant or come to his knowledge by necessary implications. In that case, the time of limitation starts to run from the 18 time such fraud or mistake is realized.

In the present suit, the claim by the plaintiff is for breach of a contract, that is the lease agreement dated 1st October 21 2009. The applicant sought to recover the consideration paid in the said agreement and other monies paid incidental to the said agreement. The plaintiff was not certain in his plaint 24 as to when default happened. However under paragraph 4(e), he


stated that on 31st October 2009 after paying the registration fees of shs 75000 and transfer fees of shs 20,000, the 3 defendant defaulted on the transfer and handing over possession of plot to him. I will thus take the date of default as 31st October 2009. This plaint was filed on 2nd November 2022 6 after 14 years from the date of default or when the cause of action for breach of contract arose.

The plaintiff did not plead any exception to account for the 9 postponement of the time under the Limitation Act. In *Iga Vs Makerere University (1972) EA 65* court observed that where a plaintiff wishes to rely on any exemption to the periods of 12 limitation it must be specifically stated in the pleadings. If no exception is pleaded in the plaint the plaint should be

15 Therefore his claim was brought outside the 6 years provided for under section 3(a) of the Limitation Act.

Further even if I were to consider the plaintiff's claim as 18 one for recovery of land comprised in Block 73, Plot 1 at Malibo Road, such claim by virtue of Section 5 ought to have been brought within 12 years from the date the right of action 21 accrued. Section 11(1) adds that in the event of a claim for land, the cause of action crystalizes from the time the person

is dispossessed of his or her land. *(See Odyek Alex &Anor v*


rejected.

*Gena Yokonani, Civil Appeal No, 09 of 2017 & Kasoya Justine & Anor v William Kaija & 3 others Civil Suit No. 6 of 2015).*

Taking 31st October 2009 as the time the claim for possession of the land arose, the claim was filed in 2022 November 2nd 6 after 14 years from the date the cause of action arose. In the absence of any exceptions pleaded by the plaintiff, the claim clearly falls outside the 12 years provided for under section 9 5 and 11 of the Limitation Act. Limitation being a substantive legal issue, it's not curable under article 126(2)(e) of the Constitution. I thus find that the plaintiff's suit is barred 12 by limitation and I accordingly uphold the point of law raised by Mr. Atuheire for the defendant.

I thus resolve the first issue in the affirmative. This point 15 of law disposes of the matter at this stage. The suit being barred by limitation is not maintainable against the defendant. I strike out the plaint under Order 7 rule 11 of 18 the Civil Procedure Rules and consequently dismiss the suit with no orders as to costs. I have declined to award costs to the defendant on account that the plaintiff paid money to the 21 kingdom which failed to honor her obligations. Therefore it

is the defendant's default that led to the suit at hand.

I so order.


Vincent Wagona

**High Court Judge**

3 **FORTPORTAL**

**DATE:20/08/2024**