Nakanwagi v Lubowa and Others (H.C.C.S.No.710 OF 1995; MISCELLANEOUS APPLICATION NO. 368 OF 2000) [2000] UGHC 55 (5 May 2000)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA

# AT KAMPALA

## H. C. C. S. No.710 OF 1995

#### **MALIYA NAKANWAGI \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* PLAINTIFF**

#### **VERSUS**

| 1. A. D. LUBOWA | | |------------------|--| |------------------|--|

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- **MPAGI MAWANDE 2.** - **EDWARD NSUBUGA 3.** - **VITULENSI NAKAYA 4.** - **THE REGISTRAR OF TITLES 5.** - **M/S SHELL (U) LTD 6.**

#### **BEFORE: THE HONOURABLE LADY JUSTICE S. B. BOSSA**

#### **RULING**

After the suit had been part heard counsel for the 6th defendant raised a point of law. The gist of the said point of law was that the claim was time-barred and could not be sustained under S.21 of the Limitation Act.

To appreciate the nature of the objection it is important to set out the claim as re-stated in the amended plaint filed by the plaintiff. Paragraphs 6 to 17 of the plaint are quoted verbatim.

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"6. The Plaintiff seeks a declaration that the plaintiff is the rightful owner of land comprised in Mbuya Block 14 Plot 48 now sub-divided into Plots. 1070 and 1071 at Mubende (hereinafter referred to as suit land) and orders that the Fifth Defendant rectifies the land register to reflect that the plaintiff is the owner of the suit land mesne profits, general damages and costs and the first and fourth defendants and the six defendant vacate the suit land.

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- 7. The facts constituting the cause of action are as follows - i). The plaintiff is the sole beneficiary of the estate of Maliya Namatovu by verbal declarations who until the 5th day of September 1994 was the registered proprietor of the suit land. - When the said MALIYA NAMATOVU (hereinafter the ii). **15** deceased) died in 1960 the late YOSWA NSUBUGA BALIRUNO now represented by the 1st and 4th

defendants fraudulently applied for and was granted letters of administration to the estate of the deceased vide Mengo Administration Cause No. 111 of 1992. A photostat and the photostat copy of the letters of Administration annexed as "B". copy of the declaration is annexed as "A"

# PARTICULARS OF FRAUD COMMITTED BY SILOLASTIKA NAMBI

- a). Declaring that the SILOKASTIKA NAMBI is the only *ID* child and daughter of the (sic) MALIYA NAMATOVU when she was not, - b). Failure to disclose that the late MALIYA NAMATOVU was survived by no child - **c).** SIKOLASTIKA NAMBI and YOSWA BALIRUNO **is** NSUBUGA know tliat MALIYA NAMATOVU died in Declaring that the deceased died in 1945 when

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**d).** daughter of the late MALIYA NAMATOVU before the Factory Zone LC. I Natete Resistance Council whereas not; Declaring that she SIKOLASTIKA NAMBI was a

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(S'

- e). Declaring false particulars about the late MALIYA NAMATOVU before a Commissioner for oaths. - iii). On receipt of the letters of Administration, the late SILOLASTIKA NAMBI got herself registered on **1 o** the Certificate of Title to the suit land as the Administrix of the deceased's estate. - iv). Subsequently SIKOLASTIKA NAMBI transferred the suit land into the names of YOSWA NSUBUGA BALIRUNO as a gift. 1

A photostat copy of the certificate of titles to the suit land instrument is hereto annexed as "D". detailing the above mentioned facts is hereto annexed as "C" and a photostat copy of the above mentioned transfer

8. The said YOSWA NSUBUGA purported to transfer the whole *5* Plot 48 to the sixth defendant and a purported transfer to reflect this transaction which was never signed by the authorised company signatories or sealed as provided for is attached hereto and marked "E".

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- 9. The plaintiff avers that an application to transfer land lodged Io by the sixth defendant was granted in respect of Plot 48 Block 14 but not for the land presently held by the sixth defendant which is Plot 1070. A photostat copy of the application to transfer is attached hereto and marked "F". - **1** 10. The plaintiff contends that the purported transfer of Plot 1070 **IS** into the six defendant's names without seeking and obtaining the Minister's consent is a nullity.

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- 11. The plaintiff shall contend that the late SIK0LAST1KA NAMBI never passed good title to the suit land to the late YOSWA NSUBUGA BALIRUNO AS BALIRUNO NSUBUGA was aware that it was the plaintiff who was sole beneficiary to the estate of MALIYA NAMATOVU and that **5** SILOLASTIKA NAMBI had obtained letters ofAdministration by making a false declaration which false declaration late YOSWA NSUBUGA BALIRUNO was party to. - 12. The plaintiff repeats paragraph 7 hereof and avers that the suit land was fraudulently transferred to the sixth defendant. **(** *O*

### Particulars of fraud of the six defendant

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- a). fraudulently transferred to it. The six defendant knew that the suit land was - Ignoring a letter from the Chairman Local Council I of b). the area not to proceed with the purchase of the suit land as there was a dispute over it.

**C).** Failure to check on rightful owner of the suit land.

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- d). Transferring the land comprised in Block 48 Plot 1070 at Mubende into its names without obtaining the Minister's consent. - e). Transferring the Land comprised in Block 48 Plot 1070 **5** at Mubende into its names without executing a transfer. - 17. The plaintiff shall contend that due to the sixth dependant's possession of the land the Plaintiff has suffered loss and damages and claims mesne profits and general damages therefore. - **18..."**

Counsel for the 6th defendant submitted that the plaintiff could not claim an interest in the estate of Maliya Namatovu and her claim expired in 1972. Mr. Musisi for the 1st to 4th defendants submitted that Sikolastika Nambi had been excluded from the amended plaint wrongfully and the **1. S** administrators of her estate should have been added as party to suit. He Counsel for the plaintiff submitted that the action was not time barred as it was not against the personal estate of the deceased and that there was no adverse possession and therefore S. 12 of the Limitation Act did not apply. He also submitted that a plaintiff was free to chose any party and proceed against that particular party. also submitted that the plaintiff could not validly make the claims she was making unless she owned the property or was administrator thereof. He therefore argued that her claim was frivolous and vexatious.

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The events which led to the amendment of the plaint and therefore to these **ID** objections to arise were as follows.

The plaintiff initially filed the suit against Sikolastika Nambi, Yoswa application was heard and granted and Shell (U) Ltd became the fourth defendant. The plaintiff filed an amended plaint on 25th September 1996. '5 Nsubuga Baliruno and the Registrar of Titles. The plaintiff later filed Misc. Application 440 of 1996 to join Shell (U) Ltd as party. The,

After that, the 1st defendant Sikolastika Nambi and the second defendant representatives of the second defendant as parties to the suit. The Yoswa Nsubuga Baliruno died. The plaintiff applied to join the legal

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BALIRUNO NSUBUGA as the first to fourth defendants and the Registrar **i** of Titles and Shell(U) Ltd became the 5th and 6th defendants respectively. 5 Section 21 of the Limitation Act on which Counsel for the sixth defendant based his objection provides as follow: application was allowed and the plaintiff filed a further amended plaint on the 29th of October 1999 in which she dropped the 1st plaintiff Sikolastika Nambi and joined the legal representatives of the late YOSWA

action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate whether under a will *I o or* on intestacy shall be brought after the expiration of twelve years accrued, and no action to recover arrears of interest in respect of any legency, or damages in respect ofsuch arrears, shall be brought after the expiration of six years from the date on which the interest became due". "Subjection to the provisions of sub-section I of S.20 of this Act, no from the date when the right to receive the share or interest

The issues as I see them are firstly, when does the right to receive a share in the personal estate of a deceased person or to any share or interest in

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such estate accrue?

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The answer to me lies in S.191 of the Succession Act which in its S.190 provides as follows:

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"Except as hereinafter provided, no right to any part of the property of a person who has died intestate shall be established in any court **5** ofjustice, unless letters of administration have first been granted by a court of competent jurisdiction.

the beneficiary when letters of cannot be time barred. I do not agree with Counsel for the plaintiff that **i©** the plaintiff is not pursuing his rights as a beneficiary. The plaint would In this case the letters of administration were first granted in 1992 and therefore the alleged rights of the plaintiff accrued on that date. I had already decided this point in my earlier ruling but I repeat it here for avoidance of doubt. **'S** appear to indicate this very clearly. Therefore the right accrues to administration are granted. This being the case, the plaintiff's action

On the question of Sikolastika Nambi and whether she should have been

party to the suit the liberty is given to the plaintiff to decide against who he wants to proceed against. This is the purview of 01 r.3 CPR. which provides. made a

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alleged to exist whether jointly or severally, or in the alternative, common question of law or fact would arise". All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transactions is where if separate suits were brought against such persons, any

Odgers practice and pleadings assist to put this matter beyond doubt when he says:-

consider whether all necessary parties have been brought before the court, and also whether it was necessary to bring before court all the parties named on the writ. He has to show in his pleading a right of action in every plaintiff, and liability on the part of each defendant **15** and he should consider whether an application to amend the writ will be necessary. The plaintiff can, at this early stage, discontinue the "Beyond drafting a statement of claim, Counsel must carefully

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action aginst any of the defendants complaint without any summons, merely by giving ntoice in writing **If** or withdraw any part of his

I would only like to add that there are similar provisions in our O 22 CPR. As long as the plaintiff obtains leave and is willing to pay costs, the defendant should not be heard to complain. Here Sikolastika Nambi is dead, Plaintiff's Counsel obtained leave to have her withdrawn. I see nothing amiss in this respect.

In the result, the objections are over-ruled. Section 21 of the Limitation Act has no application in this matter. I order the trial to proceed.

S. B. Bossa(Mrs) JUDGE 15th March 2000

15th March 2000 Matter for ruling Lubega Matovu for plaintiff Musisi for 1st - 4th Defendants Mutaawe for 6th Defendant 5th Defendant - absent Plaintiff in court 1st - 4th Defendants absent 6th Defendant - absent

Nalongo Nandawula - Court Clerk Ruling read, dated and signed in presence of above.

S. B. Bossa(Mrs)

15th March 2000

ly 2000 Court - By consent of all counsel this matter is fixed for hearing on 3rd, 4th and 5

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S. B. Bossa(Mrs) JUDGE

15th March 2000

# **THE REPUBLIC OF UGANDA**

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

# **MISCELLANEOUS APPLICATION NO. 368 OF 2000**

# **(Arising out of HCCS No. 710 of 1995)**

**SHELL (U) LTD APPLICANT**

### **VERSUS**

# **MALIYA NAKANWAGI RESPONDENT**

### **ORDER**

**THIS** application coming up for hearing on this 5th day of May, 2000 before the Honourable Lady Justice S. B. Bossa in the presence of **Mr. Geoffrey B. Mutaawe** for the Plaintiff and **Mr. Lubega Matovu** for the Respondent.

Upon hearing submission of both Counsel in this matter. IT IS HEREBY ordered that the Applicant be and is hereby granted leave to appeal to the Court ofAppeal against the Ruling of this Court dated 15 th March, 2000.

Costs of the Application to go to the Applicant

day of **GIVEN** under^my hand and the Seal of the Court this ------------------ A—, 2000.

y \_\_\_\_**/}£**

## **DEPUTY REGISTRAR**

We approve

**M/s Lubega - Matovu & Co., Advocates Counsel for the Respondent**

Extracted by:- **M/s** Ssawa, **Mutaawe** & Co., Advocates, **Suite 304 A - C Baumann House, First Floor, Plot 7 Parliament Avenue, P. O. Box 11131,**

**KAMPALA.** receipt . GGlQK? **For** SECRETAA7 TO QOUHTS OF JUniCA IB.

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