Nuwagaba & 6 Others v Bashaija & 3 Others (Civil Suit 76 of 2019) [2023] UGHC 362 (8 May 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA HIGH COURT CIVIL SUIT NO. 76 OF 2019**

# **1. NUWAGABA BENON**

- **2. MUSINGUZI PATRICK** - **3. TASHOBYA FRANK** - **4. KASHORO RICHARD** - **5. KYOYA MERABU MUHENDO** - **6. NABIMANYA MOLLY aka NYINEBIJJARA VERINA** - **7. TUMWIINE GEORGE:::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS**

## **VERSUS**

- **1. BASHAIJA JOHN** - **2. TAYEBWA ENOCK** - **3. NUKURUNGI MONICA** - **4. KWAKUNDA HOPE::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS**

# *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This ruling arises from preliminary objections raised by the Defendants before the hearing of this suit.

# **Background.**

From the Plaint, the 1st, 2nd, 3rd, and 4th Plaintiffs as beneficiaries to the estate of the late Muhendo Tomas brought a suit against the Defendants for recovery of land comprised in Plot No.11, Ranch No.43B, Sembabule District measuring approximately 25.1 hectares which allegedly belongs to the estate of the late Muhendo Tomas. In the same plaint, the 5th , 6 th and 7 th Plaintiffs as beneficiaries of the estate of the late Irunga Yonasani also brought a suit against the Defendants for recovery of land measuring approximately 300 acres comprised in Plot 12 Ranch No.43B and 2 square miles comprised in Ranch 43A and 43B, Plot No.3 belonging to the estate of the late Irunga Yonasani.

It is the Plaintiffs case that in 1999, the late Muhendo Tomas died in intestate but during his lifetime, he was allocated land by Masaka Ranch Restructing Board under the Masaka Ranching Scheme. That on the 4th of February 2009, the 1st Defendant fraudulently transferred


the land into the names of the 2nd Defendant and on 12th December 2013, the 1st Defendant also transferred the same land into the 3rd and 4th Defendants names without the consent of the Beneficiaries to the estate.

With respect to the land belonging to the estate of the late Irunga Yonasani, it was alleged that the late Irunga Yonasani secured a 5year lease on the land on 5th July 2000. It was further alleged by the Plaintiffs that the 1st Defendant fraudulently secured a lease on the land on 22nd October 2007.

The 1st, 2nd, 3rd and 4th Defendants filed a joint Written Statement of Defence. The Defendants denied the Plaintiffs claims and stated that the late Muhendo Tomas before his death sold 55 of the 60 acres to the 1st Defendant on 11th November 1994. That immediately after the purchase, the 1st Defendant fenced it off and has been in possession since 1994. At the time of purchase, the land was unregistered land and that the 1st Defendant applied for a certificate of title in 2009. He admitted to the fact that the family of the late Muhendo uses 5 acres of the land. In 2009, the 1st Defendant obtained a certificate in names of the 2nd Defendant but later transferred the land by way of gift to the 3rd and 4th Defendants in 2013.

With regards to the land allegedly belonging to the late Yosanasi Irunga, it was the Defendants case that the late Yosanasi Irunga has never owned land but was instead grazing cows on public land as a squatter. Before his demise, the late applied for a lease to land equivalent to 300 acres but died before he had acquired the lease. That on 6th June 1995, the land was allocated to the 1 st Defendant's father and that in June 2000, a lease was offered to the 1st Defendant's father by the Uganda Land Commission a long time after the late Yosanasi Irunga had died. By 2005, none of the lease conditions had been fulfilled and as a result the lease terminated. In 2007, the 1 st Defendant applied for the lease which was granted to him on the land and he has been in occupation of the land.

With regards to the 2 square miles of land, the Defendants averred that the 1st Defendant bought the land in 2001 from a one Mwebesa John. That after completing payments in 2006, the 1st Defendant applied for a certificate of title to the land which is comprised in LRV 3560 Folio 11 but later sold part of the land and now only holds 214.248 hectares.


Before hearing would commence, the Defendants raised Preliminary points of law which in their view, would dispose of the entire suit. That Preliminary points as raised by the Defendants are as follows;

1. That the Plaintiffs suit is time barred on account of Limitation.

2. That the Plaintiffs suit is bad in law for misjoinder of Parties and misjoinder of causes of action.

Both Parties filed written submissions.

Submissions for the Defendants.

# **1. That the suit is time barred.**

It was submitted for the Defendants that a plaint ought to be rejected under Order 7 Rule 11(d) of the Civil Procedure Rules where the suit appears from the statement in the plaint to barred by any law.

It was further submitted that the current suit was barred by limitation under Sections 5 and 6 of the Limitation Act Cap 80. Counsel also submitted that suits cannot be brought after 12 years from when a cause of action with respect to land arose. While citing the case of Swaleh Bin Nassiri versus Salim Bin Swaleh [1960] 1 EA 426 (SCK), it was the Defendants submission that with respect to a share in an estate of a deceased, the time within which to bring an action starts to run from the date the deceased dies because at the point of the deceased's death, a beneficiary becomes entitled to their share under the estate.

Counsel then submitted that the Court only looks at the pleadings to determine whether a Plaint should be rejected for being time barred.

It was then submitted that according to the Plaint and with respect to the estate of the late Irunga Yonasani, the late died intestate on the 5th of August 1994 and as such, the Plaintiffs became entitled to their share in the estate on the same day. It also submitted that the present suit was brought on 6th November 2019 which is beyond the 12 year limitation period allowed by the law within which a suit ought to be brought.

With respect to the land belonging to the estate of the late Muhendo Tomas, it was submitted that according to the Plaint, the late died intestate in 1999. Counsel further submitted that the


suit to recover the land belonging to the estate was filed 20 years later which is beyond the limitation period.

## **2. Misjoinder of Parties and Causes of action.**

## **(a) Misjoinder of Parties.**

It was submitted for the Defendants that the Plaintiffs misjoined parties. While relying on Order 1 Rules , 2 and 3, Counsel submitted that the 1st, 2nd, 3rd and 4th Plaintiffs are suing the Defendants jointly for recovery of land belonging to the estate of the late Muhendo Tomas while the 5th, 6th and 7th Plaintiffs are suing only the 1st Defendant for recovery of land belonging to the estate of the late Yonasani Irunga. It was Counsel'submission that both the Plaintiffs and Defendants cannot be joined in this suit.

#### **(b) Misjoinder of Causes of Action.**

While relying on Order 1 Rules 4(I), 7 and Rule 8(2) of the Civil Procedure Rules, it was submitted for the Defendants that there has been misjoinder of causes of action. Counsel submitted that the 1st, 2nd, 3rd and 4th Plaintiffs are suing the Defendants for recovery of land belonging to the estate of late Muhendo Tomas while the 5th, 6th and 7th Plaintiffs are suing only the 1st Defendant for recovery of land and recovery of property belonging to the estate of the late Yonasani Irunga in the same Plaint. Counsel contended that the causes of action do not arise from the same transactions and there is no common question of law and that the causes of action arise from distinct facts. Counsel relied on Barclays Bank D. C. O versus CB patel and others, [1959] EA at 214 to support his submission.

#### **Submissions in Reply.**

## **1. That the suit is time barred.**

It was submitted for the Plaintiffs that it is clear from the averments in the Plaint that the 1st Defendant fenced off the land comprised in the estate of the Muhendo Tomas on 15th October 2019 and the case was filed on 6th November 2019 and therefore the limitation period of 12 years had not expired.

It was further submitted that at the time of Muhendo Tomas death, the deceased was not in occupation of the land but that the family was using the land communally until it was deprived of the land on 15th October 2019.


In the alternative and without prejudice to the above, while relying on Section 25 of the Limitation Act, Counsel submitted on fraud as an exception to limitation. Counsel submitted that by a series of fraudulent acts by the 1st Defendant, the Plaintiffs were unaware of the transfers and could not therefore bring a suit in time.

With respect to the land belonging to the late Yonasani Irunga, it was submitted for the Plaintiffs that the late Yonasani Irunga was not in possession of the suit land at the time of his death and Section 6(2) of the Limitation Act only applies if the deceased was in possession of the land. Counsel submitted that the Plaintiffs discovered the fraud on 20th November 2007 and the limitation period was supposed to expire on 20th November 2019 however, the suit was filed on 6th November 2019.

## **2. Mis joinder of Parties and causes of action.**

(a) Misjoinder of Parties.

It was submitted for the Plaintiffs that all the Plaintiffs and Defendants can be joined in one suit because the cause of action in fraud was masterminded by the 1st Defendant. It was further submitted that the actions of the Defendant cut across both estates and are as a result are connected.

Counsel relied on the case of Kasumba Baissa Idi and another versus Aneez S. B Jaffer and 2 others,HCCS No.764 of 2014 to support his submission that no suit shall be defeated by reason of the misjoinder or non-joinder of parties.

## (b) **Misjoinder of causes of action.**

It was submitted for the Plaintiffs that there was no misjoinder of causes of action. Counsel submitted that the actions of the Defendant are all founded in fraud. From the authorities relied on by Counsel, specifically Centenary Rural Development Bank Ltd versus Richard Ivan Mungati HCCS. No.116 of 2018, it is Counsel's submission that a suit cannot be defeated for misjoinder of causes of action and that the Court has several remedies for misjoinder of causes of action.

Counsel also submitted that the suit involves members of the same family and Court is duty bound to prevent multiplicity of suits.


In rejoinder, Counsel for the Defendants reiterated his submissions in support of the Preliminary points of law.

I have carefully perused the Plaint and all its annexures. I have also carefully considered the submissions of both Parties.

## **Resolution**.

A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit (**see Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696)**.

A preliminary point of law raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It is thus based on a commonly accepted set of facts as pleaded by both parties. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Preliminary objections relate to points of law, raised at the outset of a case by the defence without going into the merits of the case. In any preliminary objection therefore, there is no room for ascertainment of facts through affidavit oral evidence.

## **Determination of preliminary points of law.**

# **Whether suit is time barred.**

**Order 7 Rule 11(d)** of the **Civil Procedure Rules SI 71-1** provides that, a plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. This position of the law was also emphasized in the case of *Nabyonzi v Namiiro and Another, HCMA. No. 882 of 2020.*

As rightly cited by both parties, the Limitation period within which to bring a suit with regards to recovery of land is regulated by the Limitation Act Cap 80.

The general rule under *Section 5 Limitation Act* is that; *No action shall be brought to recover any land after the expiration of 12 years from the date on which the cause of action arose/accrued.*


As earlier observed in the ruling, in resolving issues of preliminary objections, a court simply considers the plaint and its annexures. The Court also proceeds from the assumptions that all the facts pleaded in the Plaint are correct.

It was pleaded in the Plaint that the various pieces of land belong to the estates of the late Irunga Yonasani and Muhendo Tomas. Therefore, in resolution of this preliminary point raised, this Court shall proceed from the assumption that the pieces of land belonged to the estates of the late Irunga Yonasani and Muhendo Tomas.

Considering the fact that this suit was brought by beneficiaries of the estates, it is my opinion that the beneficiaries seek to enforce their interest in the estates, therefore Section 20 of the Limitation Act becomes applicable.

*Section 20 of the Limitation Act* provides that; Subject to *section 19(1), no 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 or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy or damages in respect of those arrears shall be brought after the expiration of six years from the date on which the interest became due.*

In **F. X. Miramago v. Attorney General [1979] HCB 24**, it was held that the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until the suit is actually filed. Once a cause of action has accrued, for as long as there is capacity to sue, time begins to run as against the plaintiff. One of the important principles of the law of limitation is that once time has begun to run, no subsequent disability or inability to sue stops it.

Upon careful perusal and consideration of the Plaint, it is evident that the Plaintiffs seek to enforce their interest in the estate of the late Irunga Yonasani and Muhendo Tomas. That is; land belonging to the estate of late Muhendo Tomas measuring 60 acres and two pieces of land belonging to the estate of the late Yosanasi Irunga measuring 300 acres and 2 square miles respectively.


For easy analysis, I shall first address limitation in regards to the land allegedly belonging to the estate of the late Muhendo Tomas. According the Plaint, Muhengo Tomas died in 1999. The Plaintiffs also allege that on 15th October 2019, the 1st Defendant fenced off the land. However, what is clear from the Plaint under Paragraph 12 (a) and (b) is an assertion that the 1 st Defendant registered the suit land in his names as early as 4th February 2009. The Plaint also discloses under Paragraph 12(e) that the 1st Defendant fraudulently applied for and secured a lease on the land in October 2007. It is my observation that the plaintiffs did not plead on whether they became aware of the registrations before or after the dates stated. It is therefore inferred that the Plaintiffs became aware of the 1st Defendant's actions as early as October 2007.

In then, considering 1999 as the date of the death of the late Muhendo Tomas and the date on which the Plaintiffs became entitled to a share in the estate of the late, more than 12 years have passed between the time the Plaintiffs became entitled to a share in the estate of deceased and the date on which the case was filed in 2019 to enforce their right to the property in the estate. Further, and in consideration of this Court's earlier finding that the Plaintiffs became aware of the Defendants actions as earlier as October 2007, it is also glaring the that the Plaintiffs still did not institute a suit within time even after establishing that the 1st Defendant had fraudulently acquired a lease over the land in October 2007.

It is therefore my finding that the suit with regards to land belonging to estate of the late Muhendo Tomas was brought beyond the period permitted by law within which to bring a suit.

In now considering the claim regarding land belonging to the estate of the late Yosanasi Irunga, the same principles are to be applied.

According to the Plaint, specifically paragraph 11(a), it is alleged that the late Irunga died intestate on 5th August 1994. While still considering the provisions of Section 20, the Plaintiffs suit cannot be entertained because the section is to effect that; no 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 or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued. It is my finding that more than 12 years have elapsed between the deceased's passing and the beneficaries claim to the estate of the deceased.


I agree with Counsel for Plaintiffs as far as the Limitation Act provides for circumstances where the period of limitation may be suspended. This is provided for under Section 25 of the Limitation Act.

Counsel specifically relied on fraud as an exception to limitation.

*Section 25* provides that; *Where, in the case of any action for which a period of limitation is prescribed by this Act, either;*

*(a) the action is based upon the fraud of the defendant 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 is concealed by the fraud of any such person as is mentioned in paragraph (a) of this section; or*

*(c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, or could with reasonable diligence have discovered it; but nothing in this section shall enable any action to be brought to recover, or enforce any charge against, or set 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 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 in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.*

The deduction from the above provision of the law is that, if on account of fraud of the Defendant, the Plaintiffs cause of action was concealed, the period of limitation does not begin to run until the fraud is discovered.

It was submitted by Counsel for Plaintiffs on page 4 of his written submissions that the series of fraudulent title transfers were unknown to the Plaintiffs until the land was fenced off which prompted a search in the land registry. I would like to respectfully note that the above assertions were never stated in the Plaint except for the land being fenced off.

Counsel further alleged that the fraud was discovered in 2019. This too was not specifically pleaded in the Plaint.

However, it is clear from the Plaint is the Plaintiffs knew of the dealings on the land as early as 21/06/2006 in respect of the 2 square miles of land belonging to the late Yosanasi Irunga. With regards to the 300 acres, the Plaintiffs knew of the lease offered to the 1st Defendant on 22nd October 2007 as pleaded under Paragraph 13(K) of the Plaint. And lastly, with regards to the 60 acres of the land belonging to the estate of the late Muhendo Tomas, the Plaintiffs knew of the 1st Defendant securing a lease offer to the land as early as 22nd October 2007 according to paragraph 12(c) of the Plaint.

All the above statements in the plaint show that the Plaints were aware of the 1st Defendants actions but opted not to institute the suit in time, to their detriment.

It is therefore my finding that the Plaint does not support fraud as an exception to limitation.

To quote the words of *Hon. Justice Stephen Mubiru in Odyeki & Anor v Yokonani & 4 others, HCCA. No. 9 of 2017*, "*Two major purposes underlie statutes of limitations; protecting defendants from having to defend stale claims by providing notice in time to prepare a fair defence on the merits, and requiring plaintiffs to diligently pursue their claims. Statutes of limitation are designed to protect defendants from plaintiffs who fail to diligently pursue their claims.*"

It is my finding that the Plaintiffs slept on their rights for a very long time despite knowing of the Defendants actions. They subsequently filed suit which was already subject to the limitation period and as a result, the Court cannot entertain the suit.

The preliminary objection is upheld and this suit is dismissed. Since the matter is between family members, Parties shall bare their own costs.

I so order.

Dated at Masaka and delivered electronically this 8th day of May 2023.

**Victoria Nakintu Nkwanga Katamba. Judge.**