Ssewakiryanga and Another v Kintu (Civil Suit 892 of 2020) [2024] UGHCLD 142 (20 March 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

## cIvIL SUIT NO. 892 0F 2020

#### 5 I. SSEWAKIRYANGA GRACE BABIRYE NABYONGA

(Adminlstrartor o,f the estate o.f the

late Sseuakiryanga Charles lgnatlus Musoke )

2. NALVIANGA SARAH...... "..........'' "''PLAINTIFFS

#### VERSUS

10 FRANK KINTU"........ ....".... DEFENDANT

Before: Ladu Justice Alexandra Nkonqe Ruqadua

## RULING ON PRELIMINARY OBJECTION:

The l"t plaintiff Sscwakiryanga Gracc Babirye is thc administrator of the estate of the late Ssewakiryanga Charles Ignatius Musoke ' She together with Nalwanga Sarah filed this suit against the defendant, seeking several declarations among others, that they were the 1awfu1 occupants of the land described in Busiro Block 328, plots 77 dnd 723' land at Nakitokolo (suit land)' 15

In the alternative that the defendant specifically performs the agreement between the 1"t plaintiff and the defendant in respect of 1'5 acres of land' described as BusiroBtock32S,ptotT,landatNokitokolo;andforcostsofthesuit' 20

The defendant, Frank Kintu is the administrator of the estate of the estate of the late Musenzalanda Musoke vide AC No. 626 of 2OO7; and is currently the registered proprietor of Busiro block 328, plot 77, \cntlV subdivided into

plots 7787, 7782, 7783, and 7784. 25

1 0 )pry

It was also an agreed fact that 15. 1"t plaintiff is in occupation of and possesslon of part of plot 77, as subdivided.

At the pre-trial stage the defendant raised a preliminary objcction referring to an earlier suit which he had filed against thc Ssewakiryanga Charles Ignatius Musoke, late husband to the 1"t plaintiff in Mptgi civil suit .l\Io. oo77 oJ 2oO8,

5 for orders lhat Ugx LO,OOO,OOO/=, being the unpaid baiance on the purchase of one acre of land by Ssewakiryanga; and costs of that suit.

Counsel referred to a transaction made between the defendant and the deceased on 26ft October, 2OO7. T]ne defendant had under the agreement sold one acre to the deceased for Ugx 78,OOO'OOO/=.

upon execution of that agreement, the late made deposits and committed himself to pay the balance around November 2OO7 andlot January, 2008. He made further deposits and left unpaid balance of Ugx 7O,2OO,OOO/=.

The defendant subsequently filed a suit against him in Mpigi Ctvil Suit No'

OO17 of 2OOa, The deceased did not however file any defence. On 21st April, 2008 judgment was entered against him and a decree extracted. 15

On 14e May, 2O08 the late Ssewakiryanga filed ll4A No. OO29 of 2OO8 seeking orders that tine exparte decree passed against him on 21"t April, 2008 be set aside; and for leave to file a defence and have the matter had interpartes.

- The application was served upon the defendant and fixed for hearing on 28th May, 2008. It was later adjourned to 18th August, 2008. In the absence of both parties the application to set aside the exparte decree was dismissed with costs to the defendant. 20 - The decree of court therefore remained unchallengcd by the late Ssewakiryanga and thereafter the administrator of his estate, who did not complete the payment of the outstanding balance; but remained in possession after the death of Ssewakiryanga. That she remained a trespasser on the suit land and despite protestations from the defendant, continued to develop the 1and. 25

2 u,h%.

As per order of court at Mpigi, Ssewakiryanga was directed to pay the balance of llgx 7O,2OO,OOO/= to" 31st January, 2008. It was the defendant's ciaim that had the late Ssewakiryanga paid the purchase price by that date, his full entitlement to land would begin on 1st February, 2008.

It was the defendant's contention that given the fact that this suit was filed on 6ft November , 2O2O it followed that the suit was caught by section 5 oJ the Llm,lto,tion Act. 5

It was also further argued that for the 2"d plaintiff, her husband a one Kalagala John had been authorized to stay on the land comprised on plot 723 as caretaker of the same by the then registered proprietor, the late Musenzalanda Musoke.

Following disagreements between the two, Kalagala had left the land and is now living elsewhere. The 2nd piaintiff however remained on the 1and, without the consent of the defendant.

Needless to add, land comprised in plot 723 wlnictr the 2"d plaintiff claimed as hers was not a subject of the dispute in the earlier suit in Mpigi; and neither the 2nd plaintiff nor her husband were parties to that suit or to the sale agreement which was the subject of both suits. 15

To that extent, the issue of res judicatawhich the deiendant initially alluded but later abandoned could did not therefore arise.

### Decision o court:

Order 7 rule 77 (d) oJ the Civil Procedure Rules 5.7 77-L, states that a plaint shal1 be rejected where the suit appears from the statement in the plaint to be barred by any 1aw.

Sectlon 5 oJ Linitation Act, which governs the limitation period for recovery of land provides as follows: 25

\$\*bS-

"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person."

It is the established law that a suit which is barred by statute where the plaintiff 5 has not pleaded grounds of exemption from limitation in accordance with Order 7 r.6 Civil Procedure Rules S. I 71-1 must be rejected because in such a suit the court is barred from granting a relief or remedy. (See: Vincent Rule Opio v. Attorney General [1990 – 1992] KALR 68; Onesiforo Bamuwayira & 2 Others v. Attorney General (1973) HCB 87; John Oitamong v. Mohammed 10 Olinga [1985] HCB 86).

Section 6 of the Limitation Act (supra) of the same Act provides:

# "The right of action shall be deemed to have accrued on the date of the dispossession."

The direct import of **section 5 and 6** is, first, that a person dispossessed of land 15 cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued; which is the date of dispossession.

As held in F. X Miramago v. Attorney General [1979] HCB 24, the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until when the suit is actually filed.

The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time.

It is not to extinguish claims. (See Dhanesvar V. Mehta v. Manilal M Shah 25 [1965] EA 321; Rawal v. Rawal [1990] KLR 275, and Iga v. Makerere University [1972] EA 65).

le hat

once a cause of action has accrued, for as long as there is capacity to sue, time begins to run as against the plaintiff. If by reason of disabiiity, fraud or mistake the operative facts were not discovered immediately'

In this instance, the defendant claimed that the plaintiffs were trespassers on the land and that the cause of action if any, accrued on l"t February, 2008; and given the fact that this suit was filed on 6e Novembet,2O2O it followed that the suit was caught by sectlon 5 of the Limitation Act'

court,s attention was however drawn to the arguments raised giving a history of how the late ssewakiryanga entered that land, raising some triable issues on the status of the plaintiffs' presence on the suit 1and.

Similar questions on status and the nature of ownership arise for the 2"d plaintiff, whose claim is that her family has been on the land comprised rn plot 723, Block 328 lor 50 years; recognized by the family of Kosea Lumala, as successive registered owners of the suit land. based on those questions, it would appear therefore that the issue of limitation would therefore arise in respect to both sides to the suit.

It is also noted by court from the record of the office of commissioner, Land Registration that there were a number of issues which were raised by that office but this was after the judgment (relied on by the defendant) was passed by the Mpigi court.

The suggestion made by the said office was that there could have been errors in the surveys, subdivisions and creation of certificates of titles for the suit land which were issued in the names of the defendant'

Specific reference is made to the notice issued on 6tt' March, 2OO9, by the Ag' Commissioner for land Registration to the defendant. The notice relied on by the plaintiffs, annexed to the 1"t plaintiff's witness statement indicates that the estate of Musenzalanda administered by the defendant indeed had a claim on 25 block 328.

However, it was noted in that correspondencc that part of the land surveyed by the defendant as the administrator of the estate of Musenzalanda belonged to the estate of the late Kosea Luyima onto which the 2"d plaintiffs claim is pegged.

Going by the contents of that correspondence the office of Commissioner Land s Registration notified the parties of its intention to cancel the certificates of title for Busiro Block 328 plots 23, 71 & 724 created under KtrA 354785 of s/ 1o/ 07.

The Commissioner thereupon requested the defendant to return the certificates of titles for some plots which are the subject of the present dispute. Court's 10 attention was also drawn to yet another le tter dated 29s Ju1y, 20 15 by the Permanent Secretary of the Ministry of Lands, Housing and Urban Development.

The letter titled: Land Compised in Busiro Block 328 plots 23, 31, and 124 situated at Kakitokolo (sic!) was addressed to M/s KSMO Adaocates, representing the defendant.

15 As per that correspondence, investigations into the defendant's claim confirmed that he was entitled to 18.30 acres of land originally held under the blue-page as an unascertained/ surveyed portion of land comprised in llusiro Block 328 plots 23, 37, and I24 situated at Nakitokolo. In that very letter, the defendant was advised to apply for rectification of his certificate oftitle, by virtue of section

## 20 756 ofthe RTA.

Further, that the application of the said procedure would release the excess area of land ol 1t.79 acres of unascertained portions of land comprised in Busiro Block 328 plots 23, 37, and f 24 situated at Kakitokolo. It is not clear whether that process has been completed.

25 The impression created to this court was that the defendant's own ownership of the entire piece of land was being questioned by the Land office' The circumstances under which subdivisions were made and several titles created respectively in 2077 and 2O2O over land which appeared to be in excess of that

S"l^'&

to which the estate was rightfully entitled remained unclear and call for further investigation; and for further and better particulars from the office of Commissioner, Land Registration, to be availed to court.

This court must all in the interest of justice rule out any illegality in the process of creating titles which are the subject of the dispute which matters cannot be concluded in the manner as presented.

Court must also be satisfied that there was rectification in the subdivisions and creation of titles such that the land belonging to the estate of Musenzalanda is separated from that belonging to the estate of the late Kosea Luyima.

The objection therefore not only raises more questions than it is intended to 10 address but also points to several triable issues, which can only be ascertained and addressed through a full trial and upon verification of the evidence by each side.

Since also the issue of limitation is embedded in the pleadings/arguments raised

for both sides, I accordingly reserve my decision thereon, until all evidence is 15 presented by either side, in a formal trial.

Costs await the outcome of the main suit.

ira Nkonge Rugadya

**Judge** 20

$\mathsf{S}$

20th March, 2024

Jehrend by email Delivered by email Delivered by email Delivered by email 20/3/2024