Owora v Magode Ikuya and Others (CIVIL SUIT NO.0030 OF 2022) [2024] UGHC 1238 (7 November 2024)

# **REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO CIVIL SUIT NO.0030 OF 2022 (FORMERLY MBALE HCCS NO. 007 OF 2019)**

## **NOAH OWORA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF VERSUS**

- **1. JAMES MAGODE IKUYA** - **2. OTHIENO AKIKA EMMANUEL** - **3. OMOLO JOHNSON**

### **4. TORORO DISTRICT LAND BOARD:::::::::::::::::::::::::DEFENDANTS**

#### **RULING ON PRELIMINARY OBJECTION**

#### **BEFORE: HON. DR. JUSTICE HERNRY I KAWESA.**

When this matter came up for hearing, the Defendants informed Court that they intended to raise some preliminary objections which could terminate the entire suit. The Court granted all parties schedules to file submissions addressing the said preliminary objections**.**

The Defendants filed joint submissions in which they raised the following preliminary objections.

#### **1. Failure to take out summons for Directions.**

It was argued by Counsel for the Defendants that under **O.11 A (1) (2) of the Civil Procedure (Amendment) Rules 2019**, the Plaintiff was mandated to take out Summons for Directions within 28 days from the date of the last reply or rejoinder. It was argued by Counsel that from the Court record the 1st and 2nd Defendant filed their Written Statement of Defence on 26th February 2019 while the 3rd Defendant did so on 28th February 2019, and 4th Defendant on 25th February 2019. No replies were filed by the Plaintiff. The Plaintiff accordingly, was in his view, mandatorily required to take out summons for directions on the 28th February 2019 which he has not done to date.

Counsel argued that the effect of this failure as per **O.11 A (1) (6) of the Civil Procedure Rules (Amendments) Rules 2019** is that the suit shall abate.

In reply Counsel for the Plaintiff argued that the case was filed on 30th January 2019 at Mbale High Court yet the **CRP (Amendment Rules 2019)** came into force on 31st May 2019.

He argued that the suit was filed before the amendment was gazetted into law, since the rules were gazetted on 31st May 2019. Counsel relied on **Section (17) (i) (a) of the Interpretation Act** which provides that "**The commencement of statutory instrument (SI) shall be such date as is provided in or under the SI or where no date is provided, the date of its publication as notified in the gazette**".

Counsel noted that the face of the **CPR (amendment) Rules 2019** show that it was gazetted on 31st May 2019, but do not show a date of commencement. Thus meant that they could only come into for upon publication, and could not be used retrospectively against the Plaintiffs.

In rejoinder Counsel for the Defendants insisted in submissions that since the Rules were made on 26th January 2019 and suit was filed on 31st January 2019, then the Rules were to be applied as the governing procedure and failure so to comply was fatal and suit thereby abetted.

The starting point is to examine if the said **Civil Procedure Amendment Rule 2019**, have stipulated a commencement date.

As correctly argued by Counsel for the Plaintiff, laws are not applied retrospectively. As per **Section 17 (i) (a) of the Interpretation Act**, the commencement of a SI shall be such date as is provided in or under the instrument or where no date is so provided the date of publication as notified in the gazette.

In this case there is no date of commencement attached to this law. The commencement date therefore becomes the official date of publication in the gazette which is the 31st of May 2019.

As Counsel for the Defendant also agreed that the suit was filed before 31st of May 2019 – that is on 30th January 2019, then the law had not come into force, and there was no mandatory requirement to take out summons for directions at the close of pleadings. This preliminary objection therefore is not sustained and its rejected.

#### 2. **The Suit is time barred**.

Counsel for the Defendants argued that the Plaintiff pleaded in paragraphs 7, 8, 9, and 10 of the plaint that the allocation of plot 9A and 9B to the 1st and 2nd Defendants respectively by the 4th Defendant on the basis of the minutes of 4th Defendant dated 14/01/1999 and 29/04/1999 was *null* and *void;* and that from April 1999, the 1st and 2 nd Defendants relying on the said minutes acquired leases from 4th Defendant and since 1999, started interfering with the Plaintiff's quiet and peaceful enjoyment of his land by claiming ownership thereof which Plaintiff resisted.

It's the argument of the defence that the contents of the cause of action as stated in paragraphs 7, 8, 9 and 10 of the plaint show that the Plaintiff pleads that his rights to enjoy the lease was interfered with in 1999 when the 2nd Defendant granted the 1 st , 2 nd Defendants lease from 1999 to the time of filing the suit on 31/01/2019, which is a suit to recover and after 12 years. He argued that the Plaintiffs' suit is barred by **S. 5 of the Limitation Act**. He pointed to case law in *Iga V Makerere University (1972) EA SS*, that;

'*A Plaint barred by limitation is barred by law and must be rejected. Such a plaint should be rejected even though an interlocutory Judgment has been entered'*.

He also referred to *Nabisere Cieraline Mirundi V Henry Fred Mutebi Sserugga and Anor HCCS No. 565/2012 where J Bashaija* quoted *Lord Creen Mr. in Hilton Sutton steam Laundry (1946) IKB61* who held that "*statutes of Limitation are by their nature strict and inflexible enactments"*

Counsel pointed out that the Plaintiff did not plead any of the exceptions under Part III of the Limitation Act, and that since the axe has fallen, the plaint must be dismissed or be struck out with costs.

In reply Counsel for the Plaintiff contended that the Defendants interfered with the Plaintiff's rights and interests over the said property. He refers to the pleadings under paragraph 7, 8, 9 and explains them as being explanatory to paragraph 10 and 11 where he argues the gist of Plaintiff's case as he claims in the submissions. He argued that in 1999 there were no freehold titles for the Plaintiff to have a cause of action then. In 1999, the Plaintiff's lease was still running. The Defendants were granted lease interests in the suit property in 2017 and it's that action which is being challenged in this suit. He further submitted that it is on Court record that the Defendant's actions of interference have been continuous, consisting of several acts since 1999. The last act was the alleged consent withdraw entered into by the Defendant in HCCS No. 12 of Mbale High Court.

Counsel argues that the Plaintiff specifically pleaded fraud in Paragraph 13 and 14 regarding this allocation, hence the argument of being time barred ought to be rejected.

In further rejoinder Counsel for the Defendants pointed out the fact that Counsel in his own submissions at paragraph 2 of page 5 stated that the Defendant's actions of interference consist of several acts since 1999, which is an admission that cause of action arose in 1999.

Counsel pointed out that merely referring to fraud in the plaint is not enough. The law requires under Section 25 of the Limitation Act, that fraud must be specifically pleaded in the plaint indicating that the Plaintiff was out of time for instituting the suit and plead the circumstances which led to that failure which has to be one of the exceptions provided under Section 25 of the Limitation Act; which the Plaintiff never did.

I have internalised all the arguments above.

The contention seems to be whether the cause of action arose in 1999 as alleged by the Defendants or in 2017 as alleged by the Plaintiffs for purposes of ascertaining whether the suit is time barred.

This Court is guided by the position of the law under the Limitation Act which is a statute of strict application. Indeed, in the case of *Uganda Railways Corporation V Ekwaru D. O and 5104 Ors CA No. 07/2019, SCU* held that;

"*A statutory limitation period as a point of law can be raised at any stage an appeal even if it was not brought to the attention of the trial Court*".

In the *ratio decidendi,* the Supreme Court pointed out that;

"*the aspect of a suit being time barred was important because once the time period limited under the statute expires the Plaintiff's right of action will be extinguished against a Defendant. The Court should therefore ensure that the suit is not time barred*"

In ensuring this fact, Court has to look at the plaint generally.

This is so because it is the plaint which contains the cause of action which gives a detailed account of timelines, facts and allegations regarding when the dispute arose.

In this case the cause of action as alleged in the plaint is laid out clearly from the pleadings under paragraphs 7,8,9 and 10 therefore. The said paragraphs allude to the fact that the violation of the Plaintiff's rights began in 1999. He pleaded in paragraph 7 that:

"*while the plaintiff's lease was still running, the 1st and 2nd Defendants purported to apply for the suit land from the 4th Defendant, whereby they alleged that the 4th Defendant allocated the suit land describing as plot 9A and 9B to the 1st and 2nd Defendants respectively. The same Defendants relied on the alleged allocation minutes of the 4th Defendant dated 14/01/1999 and 29/04/1999 copies of which are attached herewith as DI and D2 respectively*"

In paragraph 10 the Plaintiff avers that the 1st and 2nd Defendant from *1999 started interfering with the Plaintiff's quiet and peaceful enjoyment of his land by claiming ownership thereof which the Plaintiff resisted*"

The pleadings above clearly show that the Plaintiff states that the interference by the Defendants began in 1999. This is the time therefore referred to in **Section 5 of the Limitation**, which is to the effect that **no action for recovery of land should be brought after the period of 12 years**.

The arguments by Counsel for the Plaintiff about fraud have been rebutted by Counsel for the Defendant in that no limitation, was specifically pleaded in the plaint so as to bring it under the specified exceptions pointed out in **Section 25 of the Limitation Act**.

The submission by the Plaintiff on this point, at page 5 of his submission conceded that "it is on Court record that the Defendant's action of interferences have been continuous consisting of several acts since 1990. The last was the alleged consent withdraw entered into by the Defendants in HCCS No. 12 of 2012"

The import here is that the Plaintiff was actively aware of this interference since 1990. The cause of action is therefore in 1990 as pointed out by the defence. This means that the suit was filed in Court 20 years after the cause of action arose and this is after 12 years contrary to Section 5 of the Limitation Act.

The effect of this was pointed out in *Iga V Makerere University ]1972] EA 65*, that of plaint barred by limitation is barred by law and must be rejected. I am aware of the intentions of the Plaintiff to be heard on his claims as argued by Counsel in submissions, however the law as enunciated in *Nabisere Geradine Mirundi V Henry Fred Mutebi Serugga and Another HCCS No. 565/2012; Bashaga (Supra)* quoting *Lord Creen MR in Hilton Satton V Steam Laundary [1946] IKB 61* Is to the effect that;

"*statutes of limitation are by their nature strict and inflexible enactments*". *Their overriding purpose is interest republican ut fins litum, which means litigation shall automatically be stifled after a fixed length of time irrespective of merits of the particular case. Statutes of limitation are not concerned with merits. Once the axe falls, it falls and Defendant who is fortunate enough to* *have acquired the benefit of the statute of limitation is entitled of course to insist on his strict rights*"

I agree with Counsel for defence that the Plaintiff has not pleaded any exceptions under Part III of the Limitation Act, and the axe has fallen against the Plaint. This preliminary objection is proved and is sustained. The effect of this finding is that this suit is barred by limitation and the plaint is rejected. This finding alone terminates this entire suit. Hence I will not consider the 3rd and the 4th preliminary objection which are overtaken and overridden by the fact that this plaint is rejected and is dismissed with costs to the Defendants.

I so order.

…………………………………….

Hon. Dr. Justice Henry I. Kawesa **JUDGE.** 7/11/2024