Sserufusa v Bamwite and Another (Civil Suit No. 122 of 2013) [2024] UGHC 1209 (30 January 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

## CIVIL SUIT NO. 122 OF 2013.

# (Formerly Chief Magistrate's Court of Mengo Kabakanjagala Road Cs. No. 2821 Of 2010)

## SSERUFUSA EDWARD MULEMA MUKASA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. BAMWITE EDWARD - 2. WAISWA AMOS - 3. KARIM HIRJI - 4. THE ADMINISTRATOR OF THE ESTATE OF THE LATE GERSHOM **KAIHURA** - 5. VERONICA KAIHURA - 6. A. G COMMISSIONER OF LANDS REGISTRATION ::: DEFENDANTS

## BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K

## **RULING**

The Plaintiff brought this suit against the Defendants jointly and severally seeking for recovery of leasehold land situated on Plot No. 224 FRV 56 Folio 16 of Block 10 Kibuga Kyadondo Sentema Road Mengo Upper Namirembe, among others. The Plaintiff asserts that the said land belongs to his father (Mukasa Joseph).

$\mathsf{S}$

Save for the 2nd Defendant, the 1st, 3rd, 4th, 5th and 6th Defendants filed their respective defenses wherein they denied the contents of the plaint.

**Legal Representation;** the 4th and 5th Defendants were represented by Counsel Deo Bitaguma, the 3rd Defendant was represented by Counsel Kenneth Kiapi, the 6th Defendant was represented by Counsel Patience Tumwijukye while the Plaintiff was self-represented.

When the suit came up for scheduling on 11/04/2024, Counsel for the 4th and 5th Defendants, together with Counsel for the 3rd and 6th Defendants, informed court that they had preliminary objections to raise. Court directed Counsel for the parties to raise the same by way of written submissions which they did.

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The preliminary objections are to the effect that:

- i. The Plaint does not disclose a cause of action against the Defendants. - The suit is time barred. $\dddot{1}$ . - iii. The suit is barred by the lis pendens rule. - iv. The suit is an abuse of court process.

## The Plaint Does Not Disclose a Cause of Action

Counsel jointly relied on Order 6 Rule 30 and 7 rule 11 (e) of the Civil Procedure Rules and the case of Remmy Kasule Vs Makerere University (1975) HCB 376 25 and argued that a plaint which does not disclose a cause of action shall be rejected. That the instant suit is frivolous because it does not make any sense for a prudent person to plead to it. That the plaint is not clear and precise to be understood with no real issues to be determined by court at the trial. Counsel further relied on the case of Kahwa & Anor Vs UTC (1978) HCB 318 where Odoki Ag. J (as he then 30 was) held that the object of pleadings is to bring the parties to a clear issue and delimit the same so that both parties know the real questions for determination by court at the trial.

That under paragraph 9 (k) and (n), the Plaintiff states that he purported to 35 unsuccessfully buy the suit land at 4,000,000/- and fault him for obtaining powers of attorney. That the 3rd Defendant is sued as an agent of a disclosed principal who have not been sued. Counsel relied on the case of Pheneas Agaba Vs Swift Freight HCCS No. 1000 of 1999 where Arach- Amoko J (as she then was) stated 40 that,

> The general rule is that where an agent makes a contract on behalf of his principal, the contract is that of the principal and not the agent, and prima facie at common law the only person who can sue and be sued is the principal' per Wright J, in Montgomerie Vs United Kingdom Mutual Steamship Association (1891) 1 QB 370 at 371.

Counsel added that the suit is wrongly brought against the 3rd Defendant and that the plaint does not disclose a cause of action against him. That neither the Plaintiff nor his predecessors were entered on the register or had title on Block 10 Plot 224 which means the Plaintiff has no cause of action against the 6th Defendant. That the

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particulars of fraud pleaded under paragraph 9 (v) do not disclose any fraudulent acts on the part of the 6th Defendant.

In reply, the Plaintiff similarly relied on Order 7 rule 1 and 8 of the CPR and the

case of Auto Garage & Anor Vs Motokovu CACA No. 22 of 1971 EALR 514 and 519 and submitted that the plaint is very clear, disclosing the 3rd Defendant as a direct participant in executing an eviction against the Plaintiff on 10/04/1997 before the Power of Attorney was granted to him on 15/08/1997. That the plaint is also clear that the 6th Defendant failed in his duty to reject the records of the agreement of Plot 129 KB 10. He also relied on the case of Copyline Ltd Vs Rapid Shipping & Freight (U) Ltd HCCS No. 314 of 2008 where Justice Lameck N. Mukasa held that where there is a contract between the plaintiff and the defendant, it cannot be properly adjudicated upon on the pleadings without hearing evidence of the parties. Further, that the general rule is that an agent cannot escape liability by claiming that he acted under the authority of the principal. That from $22/06/1994$ to $14/08/1997$ , there was no authorization granted to the 3rd Defendant hence acting ultra-vires in evicting the Plaintiff.

## Court's Decision

# In Tororo Cement Co Ltd v. Frokina International Ltd Civil Appeal No.

2/2001 it was held that "in order to prove there is a cause of action, the plaint must 70 show that the plaintiff enjoyed a right; that the right has been violated; and that the defendant is liable". In addition, the Court of Appeal, in Kapeke Coffee Works Ltd Vs NPART CACA No. 3/2000, guided that in determining whether a plaint discloses a cause of action, the court must look only at the plaint and its annexures if any and nowhere else. 75

According to the plaint, the Plaintiff claims that his father bought an interest comprised in Block 10 Kibuga Plot 129, which later became 224, from the late Muhamediali Nasser before expulsion of Asians on 20/05/1972. That between 1969 to 1972, the registered proprietor of LRV 328 Folio No. 7 failed to pay the ground rent and the diocese made a re-entry. That on 22/02/1972, Namirembe diocese (Registered Trustees of the Native Anglican Church of Uganda) recognised his father as the rightful owner to take possession and leased the land to him on

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$1/03/1976$ . That between $4/10/1982$ to $26/01/1986$ , the said property was encroached on by the army and it was re-acquired on 9/04/1986.

That on 22/06/1993, Farida Habib Muhamedali Nasser and Habib Nasser gave powers of attorney to Shamash Allibhai and Amin Allibhai which lapsed on 22/06/1994. That Habib Nasser had no right to give powers of attorney since he had already sold his interest to the Plaintiff's father on 20/05/1972. That on 3/04/1997, the 1st Defendant gave eviction orders to the 2nd Defendant who evicted him from his father's domain. That on 8/04/1997, the 2nd Defendant obtained a forged judicial document under the certificate of levy distress for rent and evicted him on 10/04/1997 despite there being no court file at Mengo Court. That on 2/10/1997, the 4th Defendant transferred his (Plaintiff) interest to the 3rd Defendant at 10,000,000/- and the 4th Defendant took possession. Further, that on 15/08/1997, the 3rd Defendant obtained a power of attorney registered with the Ministry of justice on $21/10/1997$ ; that the 5th Defendant, on $1/01/2002$ , obtained a lease from Registered Trustees of the Native Anglican Church of Uganda as plot 129 thinking that it was plot 224 yet Plot No. 224 had a different location; and that by 6th November, 2002, the 6th Defendant registered the 5th Defendant.

It is the Defendants argument that the 3rd Defendant should not have been sued by the Plaintiff since his alleged principal is disclosed. However, the Plaintiff argued that the 3rd Defendant participated in his eviction on the $10/04/1997$ before powers of attorney were granted to him by a one Farida Habib Muhamedali Nasser.

Whether or not the 3rd Defendant evicted the Plaintiff is something subject to proof by evidence. However, the allegation that he did so on behalf of the Farida Habib Muhamedali Nasser is apparently implausible. For instance, none of the documents 110 attached to the plaint in respect of the alleged eviction show that the same were issued by and on behalf of the 3rd Defendant. Annexure 'I', a letter of instruction to evict and levy Distress for rent on Plot 129 dated 4/04/1997, specifically shows that Muhwezi Bamwite Co. Advocates acted for and on behalf of Farida Habid Muhammedali and not the 3rd Defendant. In principle, where a principal is known, 115 the suit must be brought against him or her and not the agent. (See. Obuntu Consultancy Ltd vs Plan Build Technical Services Ltd CS No. 173 of 2014).

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Therefore, it was improper to sue the 3rd Defendant instead of his principal, the Farida Habid Muhammedali, in as far as the aforesaid allegation is concerned.

As regard the rest of the claim, the Plaintiff stated, under paragraph 9 (j)-(m) and (o), that the $1^{st}$ and $2^{nd}$ Defendants on 3/04/1997 evicted him from his father's home without authority. That the 4th Defendant took his interest through the 3rd Defendant on 2/10/1997 at 10,000,000/-. Further, that the 5th defendant, on $1/01/2002$ , obtained a lease from the Registered Trustees of the Native Anglican 125 Church. In support of his alleged interest in the suit property, the Plaintiff attached a sale agreement dated $20/05/1972$ ; leasehold certificate of title for land in Plot 129 registered in the names of Sherbanu Muhamedali Nasser and Habib Muhamedali Nasser dated 24/02/1966; a copy of a lease agreement dated 14/01/1986 for property comprised in Plot 129 between the Registered Trustees of the Native 130 Church and Pascoal Joao Lino D'souza; receipts of payment of rent for Plot 224 Mengo issued to Joseph Mukasa by Namirembe Diocese dated 14/04/1973 and 3/07/1974 respectively; a letter of notification of rent for Plot 224 dated $16/02/1973$ ; a copy of a lease agreement and sublease agreement dated $1/03/1976$ and 2/02/1984 for property comprised in Plot 224 between the Registered Trustees 135 of the Native Church and Joseph Mukasa; an eviction notice against Joseph Mukasa dated 20/09/1982 from Plot 224; a letter dated 9/04/1986 showing that Plot 224 belonged to the estate of the late Joseph Mukasa; a lease agreement between the Registered Trustees of the Church of Uganda and Veronica Kaihura for Plot 129 and a certificate of title for property comprised of Plot 129 registered in the names 140 of Veronica Kaihura on 29/11/2002

The aforesaid documents sufficiently disclose that the Plaintiff, under his father, enjoyed a right to the suit property which was violated by the Defendants. At this point, it is not open for court to evaluate the merit of the Plaintiff's allegations until after receiving evidence at the trial. In conclusion therefore, I find that the plaint discloses a cause of action. Accordingly, the first preliminary objection is overruled. That the Suit is Time Barred

Counsel for the 3rd, 4th, 5th and 6th Defendants relied on Section 5 of the Limitation Act and argued that the Plaintiff's cause of action is for recovery of land comprised 150 in Kibuga Kyadondo Block 10 Ploft 224 Sentema Road which should have been brought before the expiration of 12 years. That the Plaintiff's father entered into a

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lease agreement for 49 years on 1st March 1976 and the Plaintiff alleged that the suit property was grabbed by the agents of the government in 1983. That the cause of action arose in 1983 and expired in 1995. That in 2002 when the 4th and 5th Defendants entered into a lease agreement with the native Anglican church, the land was no-longer in possession of the Plaintiff yet he filed CS No. 122 in 2013.

Further, that the actions of the 3rd Defendant are stated to have been committed between 3rd to 10th April 1997. That the cause of action against the 3rd Defendant is based on contract or tort whose limitation period is 6 years; and that if it was based on recovery of land, it is 12 years which expired on $10/04/2009$ . That this suit was filed in the Chief Magistrates Court Mengo on 8/11/2010 which was out of the statutory period.

Counsel also relied on Order 7 Rule 11(d) of the Civil Procedure Rule and the cases of Iga Vs Makerere University (1972) EACA 66; Dr. Arinaitwe Raphael & 37 Ors Vs AG HCCS No. 201 of 2012; Uganda Railways Corporation Vs Ekware D. O 9 2008 HCB 61; and Godfrey Magezi Vs National Medical Stores & 2 Ors HCCS No. 636 of 2016. He concluded that a suit brought after the expiration of the limitation period without pleading any exemption from the law of limitation must be rejected.

In reply, the Plaintiff also relied on Section 5 of the Limitation Act and the case of National Social Security Fund Vs Makerere University CS No. 525 of 2015 and 175 argued that the law of Limitation gives an exception when it comes to fraud. That the plaintiff got to know of the fraud in 2009 and he filed the suit in 2010. Further, that an extension of time of limitation can be done by court under Section 96 and 98 of the Civil Procedure Act.

# **Court's Decision**

I note that the Plaintiff brought the suit to recover land from the 5th Defendant. However, Section 5 of the Limitations Act bars actions for recovery of land after 12 years after the cause of action accrued.

According to the plaint, it is alleged that the plaintiff was evicted from the suit land in 1997 and the 5th Defendant got registered on the same in 2002. Ideally, the cause

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of action arose at that time when the Plaintiff was allegedly evited from the suit land and not when the same was transferred (Section 6(1) of the Limitation Act). 190 Nevertheless, the law postpones time for actions of recovery of land based on fraud to when the alleged fraud is discovered (Section 25 of the Limitation Act). However, where a suit is based on such exception, the plaint must clearly state so (Mis. App. No. 192 of 2002: Tatu Nanteza Vs Administrator General & Anor). 195 In this case, the Plaintiff submitted that he discovered the fraud in 2009 and filed the suit in 2010. Be that as it may, there is nothing in the plaint where the same was pleaded. In the absence of such statement in the plaint, I am constrained to conclude that the cause of action of action arose in 1997. Since the suit was filed in 2010, I find that the same was filed outside the statutory period. 200

The view that this court has the power to extend limitation time is misconceived, since limitation times are "strict in nature and inflexible..." (Grunenthal GMBH vs Mugisha Richard Misc. Appln No.0025 of 2023). Consequently, the suit is time barred.

Finally, in view of the above findings, it is pointless to delve into the rest of the preliminary objections. Accordingly, I sustain the second preliminary objection and dismiss the suit.

The costs of the suit shall be paid by the Plaintiff.

Signed, dated and delivered at Kampala this. $30$ day of OCto $\sim$ 2024.

abakooza Flavia Judge

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