Namukasa v Simbwa & 4 Ors (Civil Appeal No. 118 of 2018) [2020] UGCA 2135 (18 February 2020)

Full Case Text

### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

Coram: Owiny-Dollo DCJ, Kakuru & Tuhaise, JJA

### Civil Appeal No. 118 of 2018

Rose N. Namukasa. $10$ Administrator of the estate of the late M. N Sesiriva (suing through her lawful attorney ...................................... Nelson Dhibikirwa)

$15$

#### **Versus**

- 1. Simbwa Isaac - 2. Namutumba Construction Ltd - 20 3. Geo Oils (U) Ltd

$\qquad \qquad \textbf{...} \qquad \qquad \textbf{Respondents}$

- 4. The Commissioner Land Registration - 5. Buyanga Multiservices Ltd

[Appeal arising from the ruling of Bashaija Andrew J, delivered on 5th March 2018, in High Court Civil Suit No. 31 of 2014]

#### $25$

# Judgment of the Court

The background to this appeal is that the appellant, who was the plaintiff at the High Court, filed Civil Suit No. 31 of 2014 against the defendants, now respondents, in 2014. She later amended the plaint on 12th February 2015, where she sought recovery of land 30 formerly known as plot 27 Katabi Busambaga, now comprised in FRV 1006 folio 13 plot 8A-12A Busambaga Crescent herein referred to as the suit land.

$\mathscr{I}$

$\overline{5}$

- When the trial commenced, the 5th respondent's counsel raised a $\mathsf{S}$ preliminary objection on a point of law that the suit was barred in time. It was upheld by the trial Judge. The appellant was dissatisfied with the ruling and she filed this appeal, on the following grounds:- - $10$

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- 1. The learned Judge erred in law and in fact when he held that the suit was barred by time. - 2. The learned Judge erred in law and in fact when he held that the plaintiff had no cause of action against the defendants. - 3. The learned Judge erred in law and in fact when he dismissed the suit and granted costs to the defendants.

# **Representation**

At the hearing of this appeal, Mr. Mukuve Mugagga Karemire, learned Counsel, represented the appellant. Mr. Adubango Richard, learned Counsel, represented the $2nd$ $3rd$ and respondents. $Mr.$ Abraham Mpumwire, learned Counsel, represented the 5th respondent.

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# **Submissions for the Appellant**

Mr. Mukuve submitted that the learned trial Judge arrived at the finding that the suit was barred by limitation by looking at the facts pleaded in the plaint, to the effect that it was brought to the $25$ appellant's attention that there was a person attempting to encroach on the land, and she took steps which saw that person's successful removal from the property; that subsequent to that, the $1^{\text{st}}$ $2^{\text{nd}}$ and $3^{\text{rd}}$ defendants came in and perpetuated what was alleged as fraud; and that the land was originally customary land 30 until the $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants brought it under the Registration of Titles Act.

Counsel submitted that the $2^{nd}$ and $3^{rd}$ respondents do not claim their title from Khalid Masanga, the first person to encroach on

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the suit land, but rather, from the 1st respondent. He maintained $\overline{5}$ that the $2^{nd}$ and $3^{rd}$ respondents took the suit land in 2011; and that the suit was filed on 21st day of January 2014. According to Counsel, the cause of action occurred in 2011, which was within the 12 year period; that therefore the learned trial Judge erred in law and fact when he held that the suit was barred by time. $10$

Counsel also submitted that the appellant never sued Khalid Masanga who encroached on the suit land in 2000, because Masanga abandoned his quest to encroach on the land.

Counsel referred this Court to paragraph 6 (m) of the amended plaint which states that in May 2011, Nabuuma stole copies of the $15$ documents and used them to apply for registration of property in favour of the $1^{st}$ defendant. He submitted that this indicates when the chain started. He argued that the respondent's title is not rooted in Khalid Masanga the person who first encroached on the

suit land. He maintained that the respondents themselves in their $20$ written statement of defence stated that Khalid Masanga has never been on this land and what he was alleging is air, which is why they cannot now claim that they are connected to him.

Counsel further submitted that the basis for the learned trial Judge's dismissing the suit was that he agreed with the $5^{\rm th}$ $25$ respondent's submissions that the plaintiff should have in actual sense sued Khalid Masanga, that because she did not sue him in the year 2000, then her action is time barred. Counsel maintained, however, that the respondents' title is not rooted in Khalid Masanga.

## Submissions for the 2nd and 3rd Respondents

Mr. Adubango submitted that the learned trial Judge did not err when he dismissed the suit. He referred this Court to paragraph 6 (f) of the plaint which indicates the year 1999 as the time when

- the appellant became of age; and paragraph 6 (g) which refers to $\mathsf{S}$ 2000 as the time when she discovered that Khalid Masanga had put up a school on the land. Counsel submitted that the $1^{st}$ respondent is the one who sold the suit land to George Kibwika; that apparently the appellant has never been in occupation of the - suit land; and that there is a case between Simbwa Isaac and some $10$ other 4 defendants. According to Counsel, this shows that the 1st respondent also was laying claim against the 4 respondents in this appeal. He maintained that this is what paves way to George Kibwika taking over the land. Counsel wondered where the plaintiff has been all this time. $\overline{15}$

## Submissions for the 5th Respondent

Mr. Mpumwire submitted that, in paragraph 6 (g) of the amended plaint, the plaintiff states the facts that set out the cause of action clearly; that in 2000 upon visiting the land, she discovered that a one Khalid Masanga had taken over the suit land. According to $20$ Counsel, the plaintiff pleads that she had been dispossessed of the suit land in 2000. He argued that under section 6 (1) of the Limitation Act, time starts running when one is dispossessed of the land. He also submitted that Khalid Masanga is not anywhere in the proceedings before court.

Counsel further submitted that they signed a consent before the learned trial Judge in which the $2^{nd}$ and $3^{rd}$ respondents had pledged the suit land to the 5th respondent as security; that the 2nd and 3rd respondents were undertaking to pay the mortgage to the

5th respondent; and that the 5th respondent is only interested in $30$ securing the interest of the mortgagee to recover the money under the mortgage. $\mathcal{R}$

## **Consideration of the appeal.**

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$\tilde{u} = \tilde{u} - \varepsilon$

At the hearing of this appeal, learned Counsel made oral $\mathsf{S}$ submissions for the respective parties they represented. We allowed the appeal immediately after listening to the submissions of the parties to the appeal. We informed the parties and their respective counsel that we would give the reasons for the decision on notice, which we now proceed to do. $10$

# Ground 1

The issue for determination on this ground is whether High Court Civil Suit No. 31 of 2014 is barred by time.

It is evident at pages 8 and 9 of the learned trial Judge's ruling, on record, that he relied on paragraph 6 (g) of the amended plaint to 15 identify the date on which the cause of action arose. The said paragraph states as follows:-

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6 $(g)$ "The plaintiff thereafter started visiting the kibanja every so often to check on its status. In 2000 upon one such visit she discovered that certain individual had encroached on the land. A one Khalid Masanga had put up a school on the kibanja and had been allowing other people to cultivate thereon. He had also demolished the developments that the late Sesiriya had made on the kibanja and razed her grave *marks using a grader."*

According to the learned trial Judge, the cause of action started in 2000 when Khalid Masanga encroached on the suit land. However, as is evident from the amended plaint on record, that the said Khalid Masanga was not a party to the suit. As a matter of fact, the same plaint in paragraph 6 $(m)$ to (aa), in a narration, 30 pleads that the defendants (respondents in this appeal) entered on the suit land in 2011 through the appellant's sister, a one Harriet Nabuuma, who approached Isaac Simbwa the 1st defendant (1st respondent in this appeal) to register the land in

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their own names, after which certificates of title were issued to $\mathsf{S}$ the $1^{st}$ defendant ( $1^{st}$ respondent) who subsequently transferred to the $2^{nd}$ defendant ( $2^{nd}$ respondent) then the $3^{rd}$ defendant ( $3^{rd}$ respondent).

Paragraph 6 $(p)$ of the amended plaint specifically pleads as follows:- $10$

6 (p) "In May 2011, shortly after jointly being introduced, the 1st defendant and Kibwika George then reappeared and purported to initiate negotiations for compensation with certain individuals who had previously been identified by the plaintiff as encroachers on the kibanja...."

Thus, it is very clear that Khalid Masanga, though mentioned in the plaint as an encroacher since 2000, is not indicated in the plaint by the appellant as being the person through whom the respondents claim their title. The respondents, in their pleadings, do not claim their title through him either. The $2^{nd}$ and $3^{rd}$ $20$ respondents' written statement of defence also plead in paragraph 4, at page 123 of the record of appeal, that they purchased the land from Kibwika George and subsequently became registered owners of the suit land.

- We find that, the cause of action initially arose around May 2011 $25$ when the $1^{st}$ respondent started conducting negotiations regarding the suit land, subsequently surveying it and registering it in his names, and thereafter transferred the same into the names of the $2^{nd}$ and $3^{rd}$ respondents in October 2011. - The appellant pleads in paragraph 6 (v) to $(z)$ of the amended 30 plaint that she discovered this encroachment in 2011 with the aid of a one Dhibikirwa Nelson. The record shows that she filed the suit in the Land Division of the High Court in 2014, which is three years after the cause of action arose. This was therefore within

the limitation period specified in section 5 of the Limitation Act $\mathsf{S}$ Cap 80.

This would therefore mean that *High Court Civil Suit No. 31 of* 2014: Rose N Namukasa Administrator of the estate of the late M. N Sesiriya (suing through her lawful attorney Nelson **Dhibikirwa)** Versus Simbwa Isaac & 4 Others, is not barred by

time.

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This ground of appeal succeeds.

# Ground 2

The appellants faulted the learned trial Judge for finding that the plaintiff had no cause of action against the defendants. $15$

It is now settled law, as set out in **Auto Garage V Motokov (No.3)** (1971) EA 514, that to establish whether or not there is a cause of action the plaint must show that:-

- The plaintiff enjoyed a right $i)$ - The right has been violated, and $\overline{ii}$ $20$ - The defendant is liable. iii)

The record in this appeal shows that the learned trial Judge based his faulted finding on the appellant having no cause of action on his earlier, also faulted, finding that the suit was barred by limitation under section 5 of the Limitation Act, Cap 80, which curtails the right of the plaintiff to institute actions for recovery of land after 12 years have elapsed from the time the cause of action arose.

We have already made a finding in ground 1 above that the appellant's claim was not time barred, which means the learned 30 trial Judge's finding that it was time barred was an error in law and in fact.

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- The amended plaint on the face of it shows that the appellant $\overline{5}$ (plaintiff) was the owner of kibanja land; further that, in 2011 the $1st$ , $2nd$ and $3rd$ respondents encroached on her land and registered it in their respective names under the Registration of Titles Act. - In that regard, based on the decision in **Auto Garage V Motokov** $10$ (supra), the plaint in this case disclosed a cause of action.

We find that, this ground of appeal succeeds.

# Ground 3

The record shows that the learned trial Judge relied on Order 7 rule 11 (d) of the Civil Procedure Rules (CPR) when he dismissed $15$ the suit.

Order 7 rule 11 (d) the CPR provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law.

Thus, the learned trial Judge erred when he dismissed the case $20$ instead of rejecting the plaint on grounds that it was time barred. He also erred in law when he awarded costs, because costs should not be awarded on rejection of the plaint.

This ground of appeal also succeeds.

#### It is therefore hereby ordered that:- $25$

- 1. This appeal is allowed with costs to the appellant. - 2. The ruling of the learned trial Judge on the preliminary points of law is set aside. - 3. The file in High Court Civil Suit No. 31 of 2014 shall be sent back to the trial court to be allocated to another Judge for trial. - 4. The costs of this appeal shall be borne by the $5th$ respondent.

The Registrar of this court is hereby directed to send back this file $\overline{5}$ to the High Court, Land Division before another Judge for hearing and deliberation of issues raised therein.

18 .2020 Dated at Kampala this ..... . day of ...... $10$ . . . . . . . . . . . . **. . . . . . . Alfonse Owiny-Dollo** Deputy Chief Justice Mgrum $15$ Kenneth Kakuru Justice of Appeal RAAL

**Percy Night Tuhaise** Justice of Appeal

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ĝ.

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