Ssozi v Mukasa and 2 Others (Miscellaneous Application 786 of 2022) [2023] UGHCLD 405 (31 October 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

### **MISCELLANEOUS APPLICATION NO.786 OF 2022**

## (ARISING FROM CIVIL SUIT NO.741 OF 2014)

ABDU SSOZI ………………………………………………………APPLICANT

#### **VERSUS**

# MUKASA PAUL KIDZA:::::::::::::::::::::::::::::::::::: SARAH MUSOKE:::::::::::::::::::::::::::::::::::: ERIEZA KAGGWA::::::::::::::::::::::::::::::::::

### BEFORE HON LADY JUSTICE ELIZABETH JANE ALIVIDZA

## **RULING**

#### REPRESENATION

The Applicant was represented by Counsel Atuhairwe Muhwezi

The 2nd Respondent was represented by Counsel Derrick Kavuma. 15

The $1^{st}$ and $3^{rd}$ Respondents were unrepresented.

### **INTRODUCTION**

The Applicant filed this Application under Section 33 of the Judicature Act, section 98 of the civil Procedure Rules, Order 6 Rule 30 (1), Order 52 Rules 2 and 3 of the

- *Civil Procedure Rules* seeking orders that; 20 - 1. The amended Plaint dated 10th of October, 2016 be rejected, struck out and/or dismissed for failure to disclose a cause of action against the Defendant/Applicant. - 2. The Plaintiffs/ Respondents lack locus standi to claim Busiro Block 383 Plot 868 and/or right in the claim for reversionary interest. - 3. The Plaintiffs/Respondents suit vide HCCS No.741 of 2014 is barred in law for not disclosing the time when the cause of action accrued.

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- Plaintiffs/Respondents suit is frivolous and vexatious 4. The for inconsistences in respect of the description of the suit land claimed in the amended Plaint supported by attached agreement - 5. The costs of this Application be provided for

The grounds supporting this Application are set out in the Applicant's Affidavit briefly stating that;

- a) The 1st Defendant, who is party to the sale agreement annexed to the amended Plaint, is not a party to the variation of the description of the suit land Plot 868 intended by the Plaintiffs/Respondents to have been purportedly purchased on 5th March 2003. - b) There is no written variation agreement on description of the sold land between the parties to the written agreement dated 5th March 2003. - c) No proof of ownership has been attached to the amended Plaint that the Respondents' father had any Kibanja interest on the suit land comprised in Busiro Block No.383 Plot 868 at Kawotto Kitende - d) The Respondents' attachments/annextures in paragraph (g) to the amended Plaint are not in respect of any land under the Registration of Titles Act Cap 230 since they do not reflect the suit land Plot 868 or any other description. - e) The Respondents' suit is barred in law for not disclosing when the cause of action accrued. - f) It is just and equitable that the Court declares that Plaintiffs/ Respondents suit is not maintainable in law and should accordingly be struck off and or dismissed

In an Affidavit in reply sworn by the 2nd Respondent, it was stated that Lwanga Yosam the 1st Defendant to the suit sold the land to the children of the late Paulo Salongo Musoke who had a Kibanja on his land. The Respondents father had a Kibanja on the 1st Defendant's land which was in possession thereof.

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That the descriptions are clearly demonstrated in annxexture F the area schedule showing the origins of plots 9446 and Plot 1719 and the same are matters of evidence which Court shall hear at the time of trial and cannot be basis for this Application to strike out the amended Plaint.

- That the Applicant is pre-emptying the Court and is on a fishing expedition to 60 justify this Application without proof. That the 1st and 3rd Respondents had locus to sue as they have been in actual possession of the land with their father since the 1940's to date. - That the 1st Defendant fraudulently wrote the wrong plot number to defraud the Respondents of their father's kibanja of 7-8 acres on the land which they have 65 been in occupation of until he sold to the Applicant and the 3rd Defendant. Therefore 1st Respondent has locus to claim the suit land by virtue of occupation, that he was born on the suit land and their father's old houses and graves are on the suit land. - The Respondent avers that Civil Suit No. 741 of 2014 was filed within time upon 70 which the Applicant's actions of encroaching on their Kibanja and subdividing it in 2013 and prays that the Application is dismissed.

In rejoinder, the Applicant stated that he was formerly the registered proprietor of land comprised in Block 383 Plot 1719 curve out of Plot 868 not 848 and he subdivided it into plots 9446 and 9447 having purchased the same from Ssempiija Joseph who is not a party to the main suit.

That the Respondents' annexed to the amended Plaint a 2003 sale agreement of Block 383 Plot 848 and not plot 868. Both plots are separate and formerly owned by the 1st Defendant. That the 1st Defendant is not party to any written variation agreement of the description of the suit land intended to have been purportedly purchased by the Respondents.

That there is no documentary evidence attached to the amended Plaint as proof of ownership that the Respondent's father the late Paul Salongo had any Kibanja

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interest on the suit land comprised in Busiro Block No.383 plot 868 at Kawotto Kitende. That the Respondent's annextures in regards to the transfer and 85 consent to transfer are not in respect of the suit land plot 868 or any land under the Registration of titles Act Cap 230 since they do not reflect any registered land by Block and plot or any other description in any names.

That the Respondents lack locus standi to claim plot 868 Block 383 Busiro and right in the claim for reversionary interest due to the different description of land 90 sold in 2003 land sale agreement. That the suit is barred in law for not disclosing the date when the cause of action accrued and claiming enforcement of an agreement made in 2003 over 13 years. The Respondent's suit claims for Plot 868 in the amended plaint are inconsistent to their claims of land for which they obtained an interim order being plot 848 described in the impugned agreement. 95

#### **BACKGROUND**

The Respondents instituted Civil Suit No. 741 of 2014 seeking orders; for specific performance against Lwanga Yosam (the 1st Defendant), a declaration for the cancellation of certificate of title for Plot 9446 Block 383 Busiro land at Kawotto-Kitende, permananet injunction, general damages, vacant possession and costs. As proof of the suit land claim, the Plaintiffs/Respondents annexed to the amended Plaint a sale agreement between Lwanga Yosam (the 1st Defendant) as vendor of land Block 383 Plot 848.

That the 1st Plaintiff purchased the Mailo interest in the said Kibanja but the 1st Defendant neglected to complete the transfer process. Instead later the 2nd and 105 3rd Defendant's claim interest in the suit land which has been in possession of the Plaintiffs.

The Applicant who is the $2^{nd}$ Defendant in the main suit contends that the $1^{st}$ Defendant who is party to the annexed sale agreement, is not a party to the variation of the description of the suit land intended to have been purportedly purchased. That the Respondents' attachments/annextures relating to the signed transfer forms and the application for consent to transfer land are not in

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respect of any land under the Registration of Titles Act Cap 230 since they do not reflect any registered land by Block and Plot or any other description in any names.

# **ISSUES RAISED**

The Applicant raised the following issues for determination which was adopted by the Respondent.

- 1. Whether the Respondents' Plaint discloses a reasonable cause of action? - 2. Whether the Respondents lack locus standi to claim the suit land or right in the claim for reversionary interest? - 3. Whether the Respondents' suit is barred for failure to disclose the time when the cause of action accrued? - 4. Whether the Respondents' suit is frivolous and vexatious? - 5. What reliefs are available to the parties? 125

# **RESOLUTION**

Both parties filed written submissions that have been taken into consideration in determining this Application. I shall consider issue 1 and 4 concurrently as the resolution of issue 1 has a bearing on issue 4.

Issue 1 Whether the Respondents' plaint discloses a reasonable cause of action? 130 Issue 4: Whether the Respondents' suit is frivolous and vexatious?

Counsel for the Applicant submitted that the Applicant has no interest in Plot 848 as he was the registered proprietor of land comprised in Block 383 plot 9447 which plot was curved out of plot 1719 (a subdivision from Plot 868) formerly owned by Ssempijja Joseph. That the plots 848 and 868 existed separately and the Respondent's interim injunction to maintain status quo was in respect of Plot 848 and not 868.

Counsel also submitted that according to the amended Plaint, the Respondents sued the Applicant for declaration that they are the rightful owners of the suit

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- land Plot 868 and their documentary evidence in support of their claim of 140 ownership of the suit land was a land sale agreement of 2003 for Plot 848, that no written variation agreement was made by both the vendors and purchasers in respect of the intended purchase therefore there is no cause of action against the Applicant whose interest was on plot 868 and not plot 848. - Counsel for the Applicant referred Court to paragraph 4(e) of the Amended Plaint 145 that states that there was an error in the 2003 land sale agreement in that the stated Plot 848 Block 383 was not their intended plot of purchase but rather plot 868.

Furthermore, that this averment is not supported by a written variation agreement signed by both parties on description of the sold land as required 150 under Section 67 of the Contracts Act. That such an error cannot be corrected by Courts of law but by parties themselves.

Therefore, the failure by the Respondents to attach to the amended Plaint proof of a written variation agreement signed by both parties in respect of the description of the intended plot 868 and not plot 848 leaves the 2003 land sale 155 agreement binding between the parties.

Counsel for the Respondent also submitted that the amended Plaint under paragraph 4(d) and (e) show that the 1st Plaintiff and a one Kamya Nadab purchased a Mailo interest in plot 868 from the 1st Defendant and executed a sale agreement to that effect. However, due to the malicious and fraudulent actions of the vendor, he indicated a different plot number 848 in a bid to defeat the interests of the purchasers. That the $1^{st}$ Defendant then sold to the $2^{nd}$ Defendant who purchased the same without exercising due diligence.

# *The Law Applicable*

Under Order 7 r 11(a) of the Civil Procedure Rules, a Plaint may be rejected 165 by the Court if it does not disclose a cause of action. It is trite that in determining whether a Plaint discloses a cause of action, the Court must look only at

$\mathsf{6}$ the Plaint and its annexures if any and nowhere else. See Kapeka Coffee Works Ltd v NPART CACA No. 3 of 2000

- The Supreme Court defined what a cause of action is in the case of *Major General* 170 David Tinyefunza vs. Attorney General of Uganda Const. Appeal No. 1 of 1997 were the Court cited with approval the definition of a cause of action by *Mulla on* the Indian Code of Civil Procedure, Volume 1, and 14th Edition at page 206: - "A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In 175 other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. $\dots$ It is, in other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. But it has no relation whatever to the defence which may be set up by - the defendant, nor does it depend upon the character of the relief prayed for by 180 the plaintiff. It is a media upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit." - In order to prove there is a cause of action, the Plaint must show that the Plaintiff enjoyed a right; that the right has been violated; and that the Defendant is liable. 185 If the three elements are present, a cause of action is disclosed and any defect or omission can be put right by amendment. See Tororo Cement Co Ltd V Frokina International Ltd Civil Appeal No. 2/2001.

I note that the Respondents under paragraph 4 of the amended Plaint state that they are beneficiaries of the estate of the late Paul Salongo Musoke who has a 190 Kibanja interest on Block No.383 plot 868 land at Kawotto Kitende. Furthermore that they were born on the suit land, grew up there and have been in possession of the land for over 70 years. That even the suit land is also where the burial grounds for the family is.

The Respondent attached a sale agreement which shows that Yosamu Lwanga 195 (the 1st Defendant) sold to the Respondents 22 acres on Block No.883 Plot No.848

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as children of the late Paul Salongo Musoke who had a Kibanja. The Respondents in their amended plaint plead fraud against Yoasmu Lwanga (the 1st Defendant) for having sold the land to the Applicant with full knowledge that he had already sold to the Respondents. Under paragraph $f$ of the amended Plaint, the 1st Respondent contends that he paid a substantial sum of UGX 4,000,000 of the purchase price out of UGX 4,500,000.

From the perusal of the amended Plaint and the annexures attached, it is alleged that the Respondent's father had a Kibanja interest on the suit land and that the Respondents are in possession of the same. It is in contention that the Applicant purchased the same suit land from Yosamu Lwanga who had also sold to the Respondnts. The Respondents in their Plaint raised allegations of fraud against the Applicant and Yosam Lwanga.

Therefore the Respondents have a cause of action relating to their interest on the suit land. The right to own land was violated. The Defendants are alleged to have 210 violated this right.

I also note that allegations of fraud in land matters are very pertinent. Therefore there is need for this Court to ascertain and determine whether the land the Respondents' have been in possession of and purchased from the 1st Defendant

- is different from the land the Applicant contends to have an interest in. The 215 Applicant did not attach any evidence regarding ownership of Plot 868 and how he came to obtain its ownership. This vaccum can only be determined in the main suit. - I also note that in Misc. App No. 0896 of 2015, the Applicant raised this very preliminary objection relating to cause of action and Court found that the 220 Respondents have a cause of action against the Applicant.

In conclusion since the Respondents raised allegations of fraud against the 1st Defendant Yosamu Lwanga relating to the sale agreement dated 3rd March 2003 and by virtue the fact that they have been in possession of this suit land, they

have unregistered interest that ought to be determined by this Court hence this 225 suit is not frivolous and vexatious.

These issue 1 and 4 fail.

Issue 2: Whether the Respondents lack locus standi to claim the suit land or right in the claim for reversionary interest?

Counsel for the Applicant submitted that in paragraph's 4 a, b,c,d,e and f of the 230 amended Plaint, the Respondents claim ownership of the suit land plot 868 Block 383. That however there is no proof of ownership attached to the amended Plaint that their father had any Kibanja interest on the suit plot. That the Respondents have no right to claim the suit land plot 868 based on a 2003 land sale agreement which bears plot 848 and another person as a buyer by the 235 names Kamya Nadab Walonze who is not party to the claim

Counsel for the Respondent submitted that the amended Plaint and its annexures particularly the sale agreement between the 1st Defendant and the Respondents grant the Respondent's locus standi to bring this action. That the agreement therein shows that the children of the late Paul Salongo Musoke were in occupation of the suit land prior to purchasing of the legal interest in the same.

In the case of *Hon. Katuntu & Another v. MTN Uganda Ltd & Others, H. C. C. S No.* 248 of 2021, it was stated that locus standi as defined by Osborn's concise law *Dictionary 11th Edition* is, simply;

"A place of standing; The right to be heard in a court or other proceeding."

The concept of *locus standi* is the right of a party to appear and be heard before a Court. In order to invoke the jurisdiction of the Court, the person invoking must not only have an enforceable personal right or interest in the matter, but

must also the capacity to initiate the action. See Chombe & 2 Ors v Kaya & Anor 250 (Civil Appeal No. 15 of 2010) [2017] UGHCLD 24

In the instant case, according to the amended Plaint, the Respondents contend that they are the children of the late Paul Salongo Musoke, and that they have been in occupation and possession of the suit land. Under paragraph 4 (d) of the amended Plaint. The Respondents state that the 1st Respondent and Kamya Nadab Walonze purchased Mailo interest on the suit land from the first Defendant and that the land sale agreement had an error in the Plot 848 Block 383, that the intended kibanja for purchase being Plot 868 since it's the land that belonged to the Respondents.

The Respondents aver that their father had a Kibanja interest, under paragraph 260 4 (c) of the amended Plaint. The Respondents state that they were born on the suit land and they grew up there and have been in possession of the Kibanja for over 70 years. The Respondents also contend that the land sale agreement had an error in the plot No.848 Block 383 yet the right plot of intended purchase and being a Kibanja to which they had full possession since the 1940's was plot 265 No.868 since it's the land that belonged to them.

Having perused the Plaint, it is my finding that the Respondents have locus standi because of the claim to have been in possession of the Kibanja that they intended to purchase the Mailo interest.

*Issue 3: Whether the Respondent's suit is barred for failure to disclose the time* 270 when the cause of action accrued?

The Applicant submitted that the Respondents did not state when their cause of action against the 2nd Defendant/Applicant accrued and that they are seeking an order for specific performance of an agreement executed in 2003 over 13 years. That the Respondents are seeking for an order of specific performance of an agreement executed in 2003, 13 years later and hence the head suit is bared in accordance with Section 3(1) of the Limitation Act.

The Respondent submitted that no time limit was set for payment of the remaining balance for the suit land, That the respondents pleaded that they were willing to pay the outstanding balance and also transfer the land into the 1st

Respondent and Kamya Nadab's names. That the matters discussed by Counsel for the Applicant are matters of evidence which need to be delved into at trial.

I note that under paragraph 4 (i) of the Plaint, the Respondents contend that they requested for the Area Schedule of the suit land, annextue F, a copy of letter dated 13th May 2013 from Ministry of Lands addressed to the Chief Administrative Officer Wakiso requesting for the area schedule to be attached.

I also note that under paragraph j, the Respondents learnt that the $1^{st}$ Defendant had fraudulently subdivided Plot 1719 the suit land to create plots 9446 and 9447 and sold off plot 9447 to the 3rd Defendant.

It is clear from the pleadings that it was only in 2013 that the Respondents 290 discovered the fraudulent dealings in the land and breach in agreement when the area schedule revealed that the suit land had been subdivided despite their interest in the suit land.

According to Section 5 of the limitation Act, the limitation period began to run after the discovery of the fraud. In 2013 when the Respondents discovered that 295 Yosam Lwanga whom they had purchased their interest had dealt in the land and sold to the Applicant and the 3rd Defendant, they filed a civil suit in this Court. (CS 741 of 2014)

Therefore the action was brought within the prescribed period of 12 years.

300 This issue fails

What reliefs are available to the parties?

The Applicant is not entitled to the remedies sought.

Conclusion

The Application is dismissed with costs. The main suit is fixed as follows.

- 1. JSM to be filed by 30th November 2023 - 2. Trial Bundles to be filed by 14th December 2023

Parties to appear before me on 10th April 2024 at 12.30 pm for completing conferencing and fixing hearing dates.

inatro 310

Elizabeth Jane Alividza

Judge

31st October 2023

6th November 2023

Ruling uploaded on ECCMIS 320 indzo Elizabeth Jane Alividza

Judge