Nabyonzi v Namiiro and Anor (H.C.Miscellaneous Application No. 882 of 2020) [2021] UGHCLD 43 (31 March 2021)

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

# **MISCELLANEOUS APPLICATION NO. 882 OF 2020**

#### 5 **(Arising from Civil Suit No. 486 of 2020)**

| NABYONZI | RACHEL----------------------------------------------------------------------- | |-----------|-------------------------------------------------------------------------------| | APPLICANT | |

#### 10 **V**

#### **1. NAMIIRO SUZAN**

**2. NAKAGWA EVA-------------------------------------------------------------------- RESPONDENTS**

#### **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

#### **RULING**

This application is brought against the Respondents under Section 5 of the Limitation

- 20 Act Cap 80, Section 98 of the Civil Procedure Act, Cap 71, Order 7 rules 11(d) and (e) & 19 of the Civil Procedure Rules SI 71-1 by the Applicant for orders that; - a. The Plaintiff's suit be rejected, struck and/or dismissed for being statute barred. - b. The Plaintiff's suit be rejected and/or dismissed for being frivolous and vexatious. - 25 c. Costs of the suit be provided for by court.

#### Background

The Applicant/Defendant was sued by the Respondents/ Plaintiffs who sought, among others, declarations that land situate at Kigo Mutungo, on which the Applicant holds title, belongs to the estate of the late Katabalwa Eliazali Miiro.

5 Ms. Namiiro Suzan and Ms. Nakagwa Eva, the Plaintiffs sued Ms. Nabyonzi Rachel the Defendant, in their capacity as children and administrators to the estate of the late Kasawuli Dennis, a son to the late Katabalwa Eliazali Miiro. According to the Plaint, the Defendant without the consent of all the beneficiaries to the estate of the late Katabalwa Eliazi Miiro agreed with the mailo registered owner to the suit land (a 10 Kibanja), to relinquish part of the land to the registered owner in return for 4 acres of mailo interest. These 4 acres were subsequently transferred to the Defendant in her sole capacity to the exclusion of the beneficiaries including the Plaintiffs. It was on the basis

of this claim that the Plaintiffs sought the cancellation of the Defendant's title since it was obtained by fraud.

#### Grounds for Application

- 1. The Applicant is a widow to the late David Nabyonzi, the registered proprietor of land comprised in Kyadondo Block 272 Plot 100 land at Mutungo Sabagabo. - 20 2. David Nabyonzi acquired the mailo interest in this land in his own right from John Herman Katongole, Benedict M. Kakooza and Joseph Mike Lwasa who were the administrators of the estate of the late J. Kakooza. - 3. After David Nabyonzi died intestate, the Applicant, his widow, applied for and obtained Letters of Administration to his estate from the Family Division of the 25 High Court on the 7th November 2012. - 4. On the 29th April 2014, the Applicant, as part of the management of the estate, took over the land and transferred it into her name.

- 5. The Applicant has been occupying and utilizing the land as the late Nabyonzi's property before and after his death. - 6. David Nabyonzi's Kibanja interest in the land was extinguished after he acquired the registered mailo interest on the 7th December 2001. - 5 7. The Respondents' suit brought in 2018 challenging David Nabyonzi's interest in the land is time barred having been brought 17 years after the land was registered. - 8. The Plaint does not disclose any cause of action against the Applicant since their claim ought to be directed at the late David Nabyonzi's registration on the suit land. - 10

## Respondent's Reply

Ms. Nakagwa Eva, the 2nd Respondent swore an affidavit in reply to the application on behalf of the Respondents where she briefly averred as follows;

- 1. The suit was brought against the Applicant in her own right as a person who was 15 registered on the land in 2014 and it was therefore not time barred. - 2. The assertion that the Applicant is registered on the title as the administrator of the estate of the late David Nabyonzi who was registered on the land in 2001 does not form part of the pleadings and is evidence from the Applicant. - 3. The issues between the parties can be determined at the trial which allows each 20 party to adduce evidence. - 4. The suit is not time barred.

Both parties were given an opportunity to file submissions in this matter and I only received submissions from Counsel for the Plaintiff which I have duly considered.

25 **Issues**

**1. Whether Civil Suit No. 486 of 2020 (formerly Civil Suit 228 of 2018- Family Division) is time barred?**

- **2. Whether Civil Suit No. 486 of 2020 (formerly Civil Suit 228 of 2018- Family Division) is frivolous or vexatious?** - **3. What remedies are available to the parties?**

### RESOLUTION

5 **Issue 1**

# **Whether Civil Suit No. 486 of 2020 (formerly Civil Suit 228 of 2018- Family Division) is time barred?**

Section 5 of the Limitation Act Cap. 80 provides as follows;

### '**Limitation of actions to recover land**

10 **No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person.'**

Counsel for the Applicant, Mr. David Sempala, submitted that the cause of action in 15 this matter arose on the 7th December 2001, when the land in issue was registered in the name of David Nabyonzi, whose estate the Defendant/ Applicant is an administrator of. The claim of fraud complained of by the Plaintiffs should have been brought against the David Nabyonzi and not the Administrator to his estate.

The Respondents maintained that their claim was against the Defendant in her own 20 right.

I have thoroughly appraised myself of the Plaint and its annexures to determine the nature of the claim against the Defendant. I observed that the suit land is only described as a Kibanja at Kigo Mutungo forming part of the estate of the late Katabalwa Eliazi Miiro measuring approximately 8 acres. There is no further description.

The cause of action can be gathered from paragraph 4(j), (k), (l) and 5 of the Plaint which I shall reproduce below;

*'(j) Lately the Defendant without the consent of all the beneficiaries to the estate of the late Katabalwa Eliazi Miiro agreed with the Mailo registered owner to the suit land* 5 *whereby the Defendant relinquished part of the said land to the registered owner and she was in return advanced 4 acres of Mailo interest.*

*(k) The said acquired interest was subsequently transferred in the name of the Defendant alone in her personal capacity without the consent and or permission of all the beneficiaries to the estate of the late Katabalwa Eliazali Miiro.*

10 *(l) Whereas the said land houses burial grounds to the family of the late Katabalwa Eliazali Miiro, the Defendant continues to use the said land to the exclusion of the other beneficiaries, the Plaintiffs inclusive.*

*5. The Plaintiffs further aver that owing to Defendant's conduct in acquiring the said title, the same was obtained through fraud and it should be cancelled.'*

- 15 When the Defendant filed her defence on the 12th September 2018, she attached her marriage certificate, the certificate of title to the land and the letters of administration to David Nabyonzi's estate. The certificate of title clearly indicated that on the 19th October 2001; John Herman Katongole, Benedict M. Kakooza and Joseph Mike Lwasa were registered on the title as the administrators of the estate of the late J. Kakooza. - 20 Two months later, on the 7th December 2001, David Nabyonzi was registered on the title. And finally, on the 29th April 2014, Rachel Nabyonzi, the Defendant was registered on the title, as administrator to the estate of the late David Nabyonzi under Adm. Cause No. HCT-00-FD-AC-56 of 2012. - 25 The Plaintiffs were at liberty to file a reply to the Defendant's defence but there is none on the record. From the pleadings, I am satisfied that the cause of action arose in 2001

when the land in issue was first registered. This makes the Plaintiffs claim time barred under section 5 of the Limitation Act. I resolve issue 1 in the affirmative.

Issue 2

# 5 **Whether Civil Suit No. 486 of 2020 (formerly Civil Suit 228 of 2018- Family Division) is frivolous or vexatious?**

Order 7 rule 11 of the CPRs provides as follows;

**11. Rejection of plaint.**

**The plaint shall be rejected in the following cases—**

10 **(a) where it does not disclose a cause of action;**

**(b) --**

**(c) --**

**(d) where the suit appears from the statement in the plaint to be barred by any law;**

15 **(e) where the suit is shown by the plaint to be frivolous or vexatious.**

In Zachary Olum and Anor v Attorney General Constitutional Petition No. 6 of 1999, it was held that court will dismiss any action if it is frivolous or vexatious in the sense that the pleadings disclose no reasonable cause of action or answer, or are so plainly 20 frivolous that to put them forward would be an abuse of the process of the court as they are not likely to lead to any practical result.

A perusal of the Plaint in Civil Suit No. 486 of 2020 (formerly Civil Suit 228 of 2018), indicates that there are no annexures to the Plaint besides the Plaintiffs' letters of 25 administration to the estate of the late Kasawuli Denis Salongo. The Plaintiffs' cause of action is unsupported by documentary evidence. They claimed that they sued the

Defendant in her own right, but the complaint related to the actions of David Nabyonzi, her deceased husband, the registered proprietor of the land in issue.

The Plaintiffs have offered no explanation as to why they did not sue the registered 5 proprietor of the land. And yet, they are seeking to cancel a title. What title? Whose title? A diligent pre-suit investigation, by Counsel to the Plaintiffs, prior to the institution of this suit, would have saved time and resources.

**In conclusion, this application is allowed. I dismiss this suit with costs on grounds** 10 **that it is barred by limitation and that the suit is frivolous and vexatious.**

**I so order.**

15 **----------------------------**

**Olive Kazaarwe Mukwaya JUDGE 31st March 2021**

Delivered by email to Counsel for the Parties.

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